- - -

ROBERT NEINAST,            :

     Plaintiff,            :

     vs.                   : Case No. 09-CV-0657

BOARD OF TRUSTEES,         :          11-CA-26


LIBRARY,                   :

     Defendant.            :

                       - - -


before the Honorable Chris A. Martin, Judge, at the

Fairfield County Common Pleas Court, Hall of

Justice, 224 East Main Street, Lancaster, Ohio,

held on March 8th, 2011.

                       - - -

                      VOLUME I

                   (Pages 1 - 193)



         On behalf of the Plaintiff:

         Pro se.

         On behalf of the Defendant:

         MR. JASON M. DOLIN
         Assistant Prosecuting Attorney
         Prosecutor's Office
         Fairfield County, Ohio
         201 South Broad Street - Suite 400
         Lancaster, Ohio 43130

                       - - -


                     I N D E X


Timothy Landers      19      53      96      99

Marilyn Steiner     102     135      --      --
 (Continuing)        --     194      --      --
 (Recalled)         277      --      --      --

Peter Vandervoort   238     246     252      --

Mary Mesi           256     267     271      --

Robert Neinast      284     306     346      --

                       - - -

EXHIBITS                          MARKED   ADMITTED

Plaintiff's Exhibit No. 1           138       139
 bylaws/Board of Trustees/Library 

Plaintiff's Exhibit No. 2           145       146
  letter/June 19, 2008/from Steiner 

Plaintiff's Exhibit No. 3           151       151
  Library Board minutes/October 21, 2008 

Plaintiff's Exhibit No. 4           155       155
  Library Board minutes/November 18, 2008 

Plaintiff's Exhibit No. 6           158       158
  Plaintiff's first set/interrogatories 

Plaintiff's Exhibit No. 8           168       168
  Plaintiff's second set/interrogatories 


                     I N D E X

EXHIBITS                          MARKED   ADMITTED

Plaintiff's Exhibit No. 9           170       170

Plaintiff's Exhibit No. 10          174       174

Plaintiff's Exhibit No. 11          195      denied
  list/footwear injury cases

Plaintiff's Exhibit No. 12          204       204
  Library Board minutes/March 17, 2010 

Plaintiff's Exhibit No. 13          210       210
  Eric Insurance policy   

Plaintiff's Exhibit No. 17           88       231
  copy/photo from Eagle Gazette  

Plaintiff's Exhibit No. 21           74       not
  picture of foot                           offered

                       - - -

Defendant's Exhibit No. 1            15        15
  Library/Code of Conduct                stipulated

Defendant's Exhibit No. 2            15        15
  Library/Code of Conduct                stipulated

Defendant's Exhibit No. 3            15        15
  Library/Board minutes/1-20-09          stipulated

Defendant's Exhibit No. 4            15        15
  Library/Board minutes/2-17-09          stipulated


                     I N D E X

EXHIBITS                          MARKED   ADMITTED

Defendant's Exhibit No. 5            19        27
  Landers /CV  

Defendant's Exhibit No. 6            29        48
  MRSA article.  

Defendant's Exhibit No. 7            39        48
  infectious diseases article  

Defendant's Exhibits 8-A thru 8-G    44        48

Defendant's Exhibits 9-A thru 9-S   111       114
  incident reports  

Defendant's Exhibit No. 10          127       129
  letter/1-21-09/from Steiner  

Defendant's Exhibit No. 11          ***       236
  (***not identified in record)  

Defendant's Exhibit No. 12          328       not
  article/Foot Care and Heel Cracks.        offered

Defendant's Exhibit No. 13          336       not
  article/American Pediatric Med. Assoc.    offered


 1                           Tuesday Morning Session,

 2                           March 8th, 2011

 3                THE COURT: Good morning. We're on

 4  the record on Case No. 09-CV-657, Robert A.

 5  Neinast, Plaintiff, versus Board of Trustees of

 6  Fairfield County District Library.

 7                This case comes before the Court

 8  this morning, the 8th day of March, 2011, now at

 9  9:00 a.m. for an oral hearing.

10                The hearing -- we're here today as

11  a result of a decision of the Court of Appeals of

12  Ohio, Fifth Appellate District, which was filed

13  November 15, 2010. That opinion states in part:

14                "We, therefore, determine, because

15  there is non-mutuality of parties, it was error

16  to impose collateral estoppel. We remand this

17  case to the Trial Court to determine if, in fact,

18  Appellee can establish reasons for the footwear

19  rule that applies specifically to Appellee."

20                There was found at paragraph 56 of

21  the opinion.

22                At paragraph 66 of the opinion, the

23  Court of Appeals further stated:

24                "...public libraries have the


 1  authority to promulgate rules and regulations as

 2  to public health and safety. This does not mean

 3  that the authority sub judice is unfettered, but

 4  requires an examination of the relationship of

 5  the shoes requirement to health and public

 6  safety."  

 7                And then in its judgment entry

 8  filed November 15, 2010, the Court stated:

 9                The matter is remanded to said

10  court, meaning this court, the Trial Court, for

11  further proceedings consistent with this opinion.

12                That would be the reason or the

13  reasons we're here today.

14                Are the parties prepared to

15  proceed?

16                MR. DOLIN: Yes, Your Honor, the

17  Library District is prepared to proceed.

18                I do have a couple of preliminary

19  matters to discuss.

20                THE COURT: Let me ask Mr. Neinast,

21  are you prepared to proceed?

22                MR. NEINAST: I'm as prepared as a

23  pro se can be.

24                THE COURT: Okay. Thank you.


 1                MR. DOLIN: Just, Your Honor, in

 2  terms of -- just to let the Court know in terms

 3  of scheduling matters. I have my witnesses here

 4  this morning and prepared to go forward. My

 5  expectation would be that our case, the Library's

 6  case, would not go beyond the morning. I'd be

 7  surprised if it did. 

 8                Mr. Neinast has served on our

 9  office -- and I accepted on behalf of various

10  witnesses -- Ms. Steiner, who is here. And

11  she'll be the representative of the library and

12  she will testify on my direct case. He also

13  subpoenaed three of the Board members: Mary

14  Mesi, M-e-s-i, who is the current Chair of the

15  Board; Peter Vandervoort, who was and is on the

16  Board.

17                Both of those, rather than have

18  them sit around this morning, because I don't 

19  know that I was going to call them, I put them on

20  half-hour telephone order, so that they wouldn't

21  be available -- wouldn't have to kill the entire

22  morning.

23                The only witness that may be

24  problematic or a potential issue is Orman Hall.


 1  Mr. Neinast subpoenaed Mr. Hall.

 2                As the Court knows, Mr. Hall is in

 3  the Governor's Cabinet and today is the State of

 4  the State address. So I spoke with -- where it's

 5  incumbent upon him to be there. 

 6                I did speak with Mr. Hall yesterday

 7  afternoon. And I suspect that his testimony 

 8  would be largely duplicitous of the other two

 9  Board members. Having said that -- and he asked

10  me to convey that if he didn't have to testify,

11  he chose not to. Having said that, he said if he

12  had to be here, he could probably be here around

13  3:00 o'clock. 

14                So I just wanted to apprize the

15  Court of that fact.

16                THE COURT: Okay. Well, he's been

17  subpoenaed.

18                And Mr. Neinast, I assume ---

19                MR. NEINAST: Your Honor, it's okay

20  with me if we do not call him. I will work

21  around it.

19                MR. NEINAST: Your Honor, it's okay

23  here, evidently, and we'll make arrangements for

24  him to be here. In fact, we can be here tomorrow


 1  too if we need to be. So it's your case.

 2                MR. NEINAST: As Mr. Dolin said,

 3  it'll probably be duplicitous and that's probably

 4  the case, unless we're getting wildly different

 5  testimony from the other folks involved.

 6                THE COURT: Very well. Okay.

 7                MR. DOLIN: Other than that, I'm

 8  prepared to move forward, Your Honor.

 9                THE COURT: Okay. Mr. Dolin, you

10  may proceed, then.  

11                MR. DOLIN: Yes. I'd like to call

12  my first witness

13                MR. NEINAST: Excuse me. if I

14  could do something preliminarily?

15                THE COURT: Yes.

16                MR. NEINAST: And I'm sorry. I'm

17  pro se, so I'm having trouble ---

18                There's before the Court a couple

19  of motions for judicial notice of ---

20                THE COURT: There's one motion

21  before the Court.

22                MR. NEINAST: Right. The one

23  motion for judicial notice of two things.

24                THE COURT: Yes.


 1                MR. NEINAST: One, that the Library

 2  has statutory immunity for everything but

 3  physical defects in the building and grounds.

 4  The other one, that customers of the library are

 5  licensees, not invitees; and therefore, the only

 6  duty of the library is to refrain from wanton and

 7  willful behavior that could injure others.

 8  Could I ask you to take judicial---

 9                THE COURT: To rule on it?

10                MR. NEINAST: Yes, to rule on that,

11  to take judicial notice of that. I think if

12  that's the case, then it removes a lot of things.

13                Like if they say there's glass on

14  the floor, they certainly can't say that that

15  affects the physical responsibility of the

16  library, because it's not a physical defect in

17  the grounds of the building, that sort of thing.

18                THE COURT: Okay. Thank you.

19                Mr. Dolin?

20                MR. DOLIN: Your Honor, as the

21  Court is aware, we oppose that motion. I'm not

22  sure that those matters are relevant to this

23  hearing.

24                THE COURT: I don't know -- I don't


 1  know that I received a response. We didn't call

 2  for one, but ---

 3                MR. DOLIN: I did file one. It was

 4  very brief. It was just a one-page.

 5                THE COURT: Do you know when that

 6  was filed, Mr. Dolin?

 7                MR. DOLIN: I think it was shortly

 8  after Mr. Neinast filed his.

 9                THE COURT: He filed it February

10  22nd.

11                Never mind. I see it. It was

12  filed February 28th.

13                MR. DOLIN: It's a one-pager.

14                THE COURT: Yes, I see it. I

15  apologize.

16                Okay. The Court intends to apply

17  the correct law, I'll say that. And what I've

18  been asked to do is take judicial notice of law.

19  At least Evidence Rule 201 applies to judicial

20  notice and that applies to judicial notice of

21  what are called adjudicative facts, not law.

22                So the Court is always obligated to

23  apply the correct law. And again, I intend to do

24  that.


 1                So I'll overrule the motion, but

 2  not -- I'm not necessarily saying -- by doing

 3  that, Mr. Neinast, I'm not necessarily saying

 4  that I'm not going to apply the law that you've

 5  cited there. I'm not saying I am or I'm not,

 6  because what I'm going to do is hear what has to

 7  be said by everybody, take the evidence, and then

 8  -- and also, the Court of Appeals has laid out

 9  what the law is and I'm to follow it. At least

10  that's my interpretation of the Court of Appeals'

11  opinion.

12                The purpose of this hearing is for

13  the Court to find facts and then, as I see it,

14  apply the law that the Court of Appeals has

15  determined.

16                So, to that extent, I'll overrule

17  the motion, but I'll let everybody argue what law

18  they want to -- they think should be applied.

19                MR. NEINAST: Thank you, Your

20  Honor.

21                THE COURT: You're welcome.

22                MR. DOLIN: And before we begin as

23  well, I think Mr. Neinast and I have agreed, at

24  least upon -- to stipulate certain documents into


 1  evidence. And I've pre-marked those and I will

 2  bring them up to the bench in just a moment.

 3                THE COURT: Do you have copies of

 4  those, Mr. Neinast? 

 5                MR. NEINAST: Yes, I do.

 6                THE COURT: Okay.

 7                MR. NEINAST: Do you want copies of

 8  my exhibits also right now, or ---

 9                THE COURT: As you use them with

10  the witness.

11                And what you can do, Mr. Neinast --

12  it's okay. I don't need to see a copy of it, the

13  exhibits. What you should do, though, when

14  you're intent to use an exhibit, show it to Mr.

15  Dolin first and then ---

16                MR. NEINAST: Your Honor, I've

17  already given him copies of what I'm talking

18  about.

19                THE COURT: And then as long as

20  he's seen a copy, then if he has an objection or

21  something, then he can object. If not, you can

22  just go ahead and use it then with the witness.

23  Okay?

24                MR. NEINAST: Thank you.


 1                THE COURT: Thank you.

 2                MR. DOLIN: Your Honor, if I may

 3  just read what these are into the record?

 4                THE COURT: Yes.

 5                         - - -

 6                Thereupon, Defendant's Exhibits

 7  Nos. 1, 2, 3 and 4 were marked for purposes of

 8  identification and stipulated into evidence.

 9                         - - -

10                MR. DOLIN: Exhibit 1, which the

11  parties have stipulated in, is captioned on top,

12  "Fairfield County District Library Board of

13  Trustees' Policy: Code of Conduct - Public."

14                It's passed by Resolution 46-97 and

15  it's dated April 15, 1997. It consists of six

16  pages.

17                Exhibit 2 is entitled, "Fairfield

16  County District Library Board of Trustees'

19  Policy: Code of Conduct - Public."

20                Passed by Resolution No. 54-07,

21  dated April 17, 2007. It consists of two pages.

22                Exhibit 3 is our minutes of Board

23  of Trustees' Meeting and related documents. It's

24  captioned on top, "Fairfield County District


 1  Library, Board of Trustees, Regular Meeting,

 2  January 20, 2009." It consists ten pages.

 3                And Exhibit 4 is captioned on top,

 4  "Fairfield County District Library, Board of

 5  Trustees, Regular Meeting, February 17, 2009."

 6  It consists of five pages.

 7                So these have been stipulated by

 8  the parties into evidence.

 9                THE COURT: Mr. Neinast?

10                MR. NEINAST: Yes, Your Honor.

11                THE COURT: Okay.

12                MR. DOLIN: With that, Your Honor,

13  I'd like to call my first witness, if I may.

14                THE COURT: Right before you do ---

15                Mr. Neinast, Mr. Dolin indicated

16  that you had subpoenaed -- did you subpoena Ms.

17  Steiner as well?

18                MR. NEINAST: Yes, I did.

19                THE COURT: Okay. Ms. Steiner,

20  Mary Mesi, Peter Vandervoort and Orman Hall.

21  We've already talked about Orman Hall and he may

22  or may not be a witness.

23                What I wanted to let you know is,

24  if Mr. Dolin calls those persons as a witness --


 1  let's say, he calls all three, Ms. Steiner, Mary

 2  Mesi and Peter Vandervoort, you will be given --

 3  after Mr. Dolin has asked questions of those

 4  witnesses, since they are his witnesses at that

 5  point, you can cross-examine those witnesses.

 6                You, then, once Mr. Dolin is

 7  finished with his case, presenting everything he

 8  wants to present, then the case would turn to

 9  you. You don't have to call those people or

10  anybody else as witnesses, but you may. In other

11  words, since -- if there's additional evidence

12  that you want to bring out from those witnesses

13  that you're not bringing out on your cross-

14  examination, then you could call any one or more

15  of those people as witnesses, or anyone else as a

16  witness, and then Mr. Dolin could cross-examine.

17                So procedurally, everybody gets a

18  chance to call witnesses and then cross-examine

19  each other's witnesses.

20                MR. NEINAST: Yes, Your Honor, I

21  understand.

22                THE COURT: Okay.

23                MR. NEINAST: And basically, I

24  subpoenaed them to make sure they were here. I


 1  suspect my cross will be sufficient.

 2                THE COURT: Okay.

 3                MR. NEINAST: But I reserve the

 4  right, if necessary, in order to ---

 5                THE COURT: I just wanted to make

 6  sure you understood that you could do that.

 7                MR. NEINAST: Thank you, Your

 8  Honor.

 9                MR. DOLIN: And I'm not sure I'll

10  call them on my direct case, but they'll,

11  obviously, be available.

12                THE COURT: Okay.

13                MR. DOLIN: And again, just for the

14  Court, normally, I would have Professor Landers

15  testify second, but he's got a class to teach

16  back at Ohio State, so I'm going to call him a

17  little bit out of order. But this will be linked

18  up through Ms. Steiner.

19                So, at this time, Your Honor, I'd

20  like to call Professor Timothy Landers. He's out

21  in the hallway.

22                THE COURT: Very well.

23                (Witness duly sworn.)

24                            - - -


 1                     TIMOTHY LANDERS

 2      being first duly sworn, testified as follows:

 3                   DIRECT EXAMINATION

 4  BY MR. DOLIN: 

 5  Q             Good morning, Professor Landers.

 6  How are you? 

 7  A             Good. Thank you.

 8  Q             Okay. Professor Landers, I'm going

 9  to ask you a few questions and we're going to

10  start off with a simple one. Your name and your

11  occupation? 

12  A             Sure. May name is Tim Landers.

13  I'm an Assistant Professor in the College of

14  Nursing at The Ohio State University.

15  Q             Okay.

16                THE COURT: Could you spell your

17  last name? 

18                MR. LANDERS: Yes. L-a-n-d-e-r-s.

19                         - - -

20                Thereupon, Defendant's Exhibit 11 No.

21  5 was marked for purposes of identification.

22                         - - -

23  Q             Professor Landers, I have marked

24  for identification ---


 1                MR. DOLIN: If I may approach the

 2  witness, Your Honor?

 3                THE COURT: You may.

 4  Q             --- Defendant's Exhibit 5. And can

 5  you tell us - --

 6                MR. DOLIN: Your Honor, I have a

 7  copy for you as well and Mr. Neinast

 8  Q             Can you tell us, Professor Landers,

 9  what Exhibit 5 is?

10  A             Sure. This is a copy of my CV.

11  Q             Okay. And is this current and up

12  to date? 

13  A             Yes, sir.

14  Q             Okay. And how long have you been a

15  professor at Ohio State University?

16  A             Six years.

17  Q             And again, which college do you

18  teach in? 

19  A             In the College of Nursing.

20  Q             All right. And you are a PhD; is

21  that correct? 

22  A             Correct. Yes.

23  Q             Okay. I'm going to go through a

24  little bit about your background and try to get


 1  you qualified as an expert, unless ---

 2                MR. DOLIN: Mr. Neinast, you are---

 3  If I may address Mr. Neinast, Your

 4  Honor?

 5                THE COURT: You may.

 6                MR. DOLIN: I'm going to go through

 7  a process now and qualify him as an expert in

 8  this. If you want to stipulate to it, it'll

 9  shorten things up. If not, I'm happy to take him

10  through his credentials.

11                MR. NEINAST: I would like to know

12  what I'd be stipulating to. He's an expert in

13  what.

14                MR. DOLIN: That's fine. That's

15  fine. Let me proceed, then.

16  Q             (By Mr. Dolin) When did you get

17  your PhD?

18  A             In 2008. 

19  Q             Okay. And would you just review

20  for us your educational background?

21  A             Sure. I have a bachelor's and

22  master's in nursing and I have a PhD in

23  epidemiology and public health, which is the

24  distribution of risk factors for diseases among


 1  populations. And then completed postdoctoral

 2  studies in antibiotic-resistant research.

 3  Q             Okay. And what year did you get

 4  your bachelor of science degree?

 5  A             1990,

 6  Q             And was that at Binghamton

 7  University? 

 8  A             It was.

 9  Q             In New York state?

10  A             Yes.

11  Q             And then you got a master of

12  science; is that correct?

13  A             Yes.

14  Q             And what was your master's in?

15  A             In nursing.

16  Q             Okay. And then -- that was in

17  1995; correct?

18  A             Yes.

19  Q             And then in 2008, you got a PhD in

20  epidemiology; is that correct?

21  A             Yes.

22  Q             Just so we all understand, can you

23  explain to us what epidemiology is?

24  A             Sure. Epidemiology is studying how


 1  diseases are transmitted among members of a

 2  population, risk factors for health and disease

 3  states.

 4  Q             Okay. Would a layman commonly know

 5  this as the area of public health?

 6  A             It would be part of public health,

 7  yes.

 8  Q             Okay. And is that part of what you

 9  teach --- 

10  A             Yes.

11  Q             --- at Ohio State?

12  A             Yes.

13  Q             All right. Now, in 2009, your CV

14  indicates that you had done some postdoctoral

15  work; is that correct?

16  A             Yes.

17  Q             And can you tell us about where

18  that was done and what that was in connection

19  with? 

20  A             Sure. My postdoctoral work built

21  on what I did as part of my PhD program, which

22  was on the risk factors for transmission of

23  antibiotic-resistant organisms and MRSA or

24  methicillin-resistant Staph aureus in particular,


 1  and risk factors and prevention of those kinds of

 2  infections. 

 3  Q             Okay. And how long was your --

 4  where was your postdoctoral work done?

 5  A             At Columbia University in New York.

 6  Q             Okay. And that was for about a

 7  year? 

 8  A             Just over a year, yes.

 9  Q             Okay. And do you have any

10  certifications or licenses granted by states or

11  otherwise licensing bodies?

12  A             I do. I'm a registered nurse in

13  the State of Ohio and a certified nurse

14  practitioner in Ohio with a certificate to

15  prescribe. 

16  Q             Okay. Meaning that you can

17  prescribe medications?

18  A             Correct.

19  Q             Okay. Now, in the course of your

20  training in epidemiology, have you published any

21  articles and peer-review journals?

22  A             I have.

23  Q             Okay. And can you tell us -- I see

24  that there is a list on the second page of your


 1  CV. Does that list fairly and accurately depict

 2  the peer-review journals that you have published

 3  in?

 4  A             Yes.

 5  Q             Okay. And amongst those, I see

 6  that there is an article that you wrote -- it

 7  looks like it's the fourth entry down -- titled

 8  "Swab type, moistening and pre-enrichment for

 9  Staphylococcus aureu on environmental surfaces."

10  Can you tell us what that article

11  was about?

12  A             Sure. I designed and conducted an

13  experiment where we took different types of

14  surfaces -- tiles and cell phones and light

15  switches -- and we used different types of swabs

16  to try to recover Staph aureus from those

17  surfaces. 

18  Q             Okay.

19  A             So we were reporting what types of

20  swabs could be used to recover normal

21  environmental contaminants from those surfaces.

22  Q             Basically, in lay terms, would it

23  be fair to describe that as what kind of swabs

24  were most effective in picking up these germs?


 1  A             Right. 

 2  Q             Okay. And what kind of surfaces

 3  did you examine in connection with that?

 4  A             As part of that paper, we looked at

 5  porous and non-porous surfaces, so things like

 6  tile and cell phone keypads. Let's see, we had a

 7  computer keyboard, a mouse, so touch surfaces.

 8  Q             Uh-huh. Okay. Now, what courses

 9  do you teach at The Ohio State University?

10  A             I teach courses in advanced

11  pathophysiology.

12  Q             Okay. Explain what that is.

13  A             Sure. Pathophysiology is just how

14  diseases occur, risk factors for disease and what

15  the underlying biologic basis is for diseases.

16  And I also teach courses in research design and

17  use of research in clinical practice.

18  Q             Okay. Would it be fair to say that

19  your training encompasses the transmission of

20  disease amongst people and from inanimate objects

21  to human beings?

22  A             Yes.

23  Q             Okay.

24                MR. DOLIN: Your Honor, I guess, at


 1  this point, what I would do is, if Mr. Neinast

 2  has no objection, I'd like to offer in Professor

 3  Landers' CV as Exhibit 5, and I'd also ask that

 4  the Court qualify him as an expert in the area of

 5  epidemiology and transmission of disease.

 6                THE COURT: Is there any objection,

 7  first, Mr. Neinast, to the CV as Defendant's

 8  Exhibit 5?

 9                MR. NEINAST: No, Your Honor.

10                THE COURT: Okay. Then that

11  document is admitted into evidence without

12  objection.

13  And I'll also go back and --

14  Defendant's Exhibits 1 through 4 are admitted

15  into evidence by stipulation between the parties.


17                Thereupon, Defendant's Exhibit No.

18  5 was admitted into evidence.

19                         - - -

20                THE COURT: With respect to Mr.

21  Dolin's request to have the Court consider this

22  witness as an expert in the field of

23  epidemiology, do you have any objections to that?

24                MR. NEINAST: No, Your Honor.


 1                THE COURT: Okay. Then the Court

 2  finds, without objection from the Plaintiff, Mr.

 3  Neinast, that this witness, Professor Timothy

 4  Landers, is an expert in the field of

 5  epidemiology. 

 6  Mr. Dolin, you may proceed.

 7                MR. DOLIN: Thank you, Your Honor.

 8  Q             (By Mr. Dolin) Professor Landers,

 9  can you tell the Court, what is a microbe?

10  A             A microbe would be a germ, a small

11  organism that exists in the environment.

12  Q             Okay. Would it be a microscopic

13  organism? 

14  A             Yes.

15  Q             Not visible with the human eye; is

16  that correct? 

17  A             Yes.

18  Q             Okay. And in your studies and in

19  your training, have you ever found that some

20  microbes are disease or infection-bearing,

21  dangerous to human health?

22  A             Yes.

23  Q             And what are some of the names of

24  the ones that you have studies?


 1  A             The ones I'm particularly

 2  interested in are Staph aureus and the type of

 3  Staph aureus that are resistant to antibiotics

 4  called MRSA. 

 5  Q             Okay.

 6  A             There are hundreds of human

 7  pathogens, but that's the one where most of my

 8  work focuses. 

 9  Q             Okay.

10                         - - -

11                Thereupon, Defendant's Exhibit No.

12  6 was marked for purposes of identification.

13                         - - -

14                MR. DOLIN: Your Honor, I'm going

15  to mark this exhibit as No. 6 for identification.

16  If I may, Your Honor, approach the

17  witness? 

18                THE COURT: Yes.

19                MR. DOLIN: And this is a copy for

20  the Court. 

21  Q             (By Mr. Dolin) Just for the

22  record, because most of us are not familiar with

23  the terms that you use, I marked an Exhibit No. 6

24  for identification. And on that exhibit you see


 1  the words "methicillin-resistant Staphylococcus

 2  aureus." Is that what you're talking about?

 3  A             Yes.

 4  Q             Okay. And that appears to be the

 5  proper spelling of that?

 6  A             Yes.

 7  Q             Okay. Very good.

 8  Now, is methicillin-resistant

 9  Staphylococcus aureus sometimes known as M-R-S-A?

10  A             It is.

11  Q             Okay. And is it sometimes called

12  MRSA? 

13  A             Yes.

14  Q             Okay. So as we move forward, I

15  will refer to it as MRSA or M-R-S-A; okay?

16  A             Uh-huh.

17  Q             All right. Now, can you tell us --

18  can MRSA cause disease and infections in human

19  beings? 

20  A             Absolutely.

21  Q             All right. And can you tell us a

22  little bit -- you did your PhD in MRSA; is that

23  correct? 

24  A             Yes.


 1  Q             Okay. Can you tell us about the

 2  MRSA germ?

 3  A             Sure. MRSA is ubiquitous in the

 4  environment and it's one of many potential human

 5  pathogens. MRSA infections are of particular

 6  interest because they're difficult to treat and

 7  antibiotics -- first line antibiotics don't work.

 8  Q             And when you say first line

 9  antibiotics, what do you mean by that?

10  A             So penicillin and the

11  cephalosporins, those classes of antibiotics.

12  And the paper by Monina Klevens and others was

13  kind of the first trend towards MRSA infections

14  occurring not just in the hospital where they

15  have been recognized as a serious pathogen for

16  years, but also in community-based settings.

17  Q             Okay. In other words, outside of

18  hospitals.

19  A             Correct. Right. So that's, again,

20  where a lot of my research interest has been, is

21  on community-based dynamics of MRSA transmission.

22                But MRSA is responsible for a range

23  of human infections. Most commonly in the

24  community-based setting, skin and soft-tissue


 1  infections, but it can also include joint

 2  infections, bloodstream infections, lung

 3  infections. And it's believed that MRSA kills

 4  more Americans than HIV does every year.

 5  Q             And how many would that be?

 6  A             Around 17,000, our most current

 7  estimate.

 8  Q             Okay. So, just if I understand you

 9  correctly, is it correct, then, that MRSA is not

10  just something that's found in hospitals; it's

11  found in the community?

12  A             Correct.

13  Q             And you used the word "ubiquitous,"

14  that it is ubiquitous in the environment. Can

15  you explain what you mean by that?

16  A             Sure. Well, we live in a very rich

17  microbiologic environment where there are

18  thousands of germs that are part of our -- not

19  just our own human bodies, but that exist on all

20  kinds of surfaces. They're just everywhere.

21  It's part of -- you know, just a lot like the air

22  we breathe. Except in very controlled

23  situations, you're not able to eliminate all of

24  the germs. So if we were to culture many


 1  surfaces, what I mean by ubiquitous is that we

 2  would recover Staph aureus and MRSA from most

 3  surfaces.  

 4  Q             Is MRSA in this room?

 5  A             It certainly is.

 6  Q             Is it on this bar?

 7  A             It likely would be on that bar,

 8  yes.

 9  Q             Is it on this carpet?

10  A             Most likely, yes.

11  Q             Okay. So to be colloquial about

12  it, we're swimming in it?

13  A             We are. We're guests in their

14  environment, would be another way to think of it.

15  Q             Okay. Now, I'd like you to look at

16  what I've marked as No. 6 for identification.

17  And have you seen this article before?

18  A             I have.

19  Q             And again, just for the record,

20  this article is entitled, "Invasive Methicillin-

21  Resistant Staphylococcus aureus Infections in the

22  United States."

23                And was this article published in

24  the Journal of the American Medical Association?


 1  A             Yes.

 2  Q             And is that a peer-review journal?

 3  A             It is.

 4  Q             And is this article authoritative

 5  and widely accepted within the scientific

 6  community as accurate and correct science?

 7  A             Yes.

 8  Q             And is this a reliable authority?

 9  A             Yes.

10  Q             Could you read for us the

11  conclusions that were reached by the author,

12  Monina Klevens, K-l-e-v-e-n-s, in this study?

13  A             Sure. "Invasive MRSA infection

14  affects certain populations disproportionately.

15  It is a major public health problem primarily

16  related to healthcare, but no longer confined to

17  intensive care units, acute care hospitals, or

18  any healthcare institution."

19  Q             And it sounds like you agree with

20  that conclusion; is that correct?

21  A             I do.

22  Q             Okay.

23  A             I might be a little bit more

24  forward about ---


 1  Q             How would you be forward about it?

 2  A             Well, for sure, we know that

 3  community MRSA is the largest segment of staph

 4  infections. And it's believed now that

 5  community-based organisms, MRSA, that originates

 6  in the community is actually -- is what's causing

 7  a lot of healthcare associated infections.

 8  Q             Now, can you tell us, Professor

 9  Landers, how is MRSA transmitted to humans?

10  A             Primarily through contact with

11  surfaces. There is some person-to-person contact

12  that occurs, but the primary route of

13  transmission would be through contact.

14  Q             Okay. And so, for example, if I

15  had a -- or if a person had a cut in their hand

16  and put it on a MRSA surface that contained MRSA,

17  would that be a way to obtain the infection?

18  A             Yes.

19  Q             All right. And if I was walking

20  barefoot and had a cut on my foot or a lesion of

21  some type, an opening on my foot, and stepped on

22  a carpet that had MRSA, would that be a way for

23  me or a person to get the MRSA infection?

24  A             Yes.


 1  Q             Now, in addition to MRSA, are there

 2  other types of pathogens, germs, or nasties, as

 3  I'll call them, that would be transmitted in a

 4  similar way? 

 5  A             Sure.

 6  Q             And are there other types of

 7  pathogens or germs that one could find on, say,

 8  carpet in a public building?

 9  A             Yeah.

10  Q             Yes?

11  A             Yes, yes.

12  Q             Okay. So is your testimony, then,

13  that MRSA is, in fact, found in carpets in public

14  facilities? 

15  A             Yes.

16  Q             Okay. And is it found just on

17  carpets or can it also be found on hard surfaces?

18  A             On porous and non-porous surfaces.

19  Q             Okay. So, for example, it could be

20  found on tile surfaces; is that correct?

21  A             Yes.

22  Q             All right. And again, how would

23  the microbes -- how would these MRSA microbes get

24  there? 


 1  A             Well, they're part of the

 2  environment, so they would be transmitted through

 3  touch, through vectors or people or animals that

 4  carry these organisms back and forth without

 5  intending to. They could be transmitted through

 6  inanimate objects, you know, things that are --

 7  pens that are shared.

 8  Q             For example, could people wearing

 9  shoes get MRSA on their shoes and drag it along a

10  carpet and deposit it that way?

11  A             They could.

12  Q             And could people who had MRSA on

13  their bare feet deposit it on a carpet?

14  A             Yes.

15  Q             Can it be blown in through the

16  wind? 

17  A             It's possible.

18  Q             Okay. Based upon your study and

19  your experience, is there any way in public

20  spaces for there not to be MRSA present?

21  A             Well, we'd like to think in the

22  hospital that we're able to completely sterilize

23  surfaces, and so that would be cleaning and then

24  disinfection.


 1  Q             Okay.

 2  A             But that requires a great deal of

 3  effort and control to control the airflow, to use

 4  a highly specific agent that kill microbes, that

 5  kill germs. In a public place, it would be

 6  extremely impractical.

 7  Q             All right. You're talking about

 8  the kind of clean that one might find in a

 9  surgical -- in an operating room; is that

10  correct? 

11  A             It would have to be beyond clean.

12  It would have to be sterile, which would mean

13  there would be no organisms.

14  Q             Okay.

15  A             Which would be an operating

16  theater, for example.

17  Q             Okay. And in your experience, that

18  is not the typical level of cleanliness that one

19  finds in a public facility; is that correct?

20  A             No, no. Or in a home or -- right.

21  Q             How long can MRSA live, survive on

22  surfaces? 

23  A             Weeks to months.

24  Q             And during the period that it is


 1  surviving, is it capable of passing disease?

 2  A             Yes.

 3                         - - -

 4                Thereupon, Defendant's Exhibit No.

 5  7 was marked for purposes of identification.

 6                         - - -

 7  Q             I'm going to show you what I've

 8  marked as Exhibit No. 7 for identification.

 9                Professor Landers, I'd like you to

10  look at what I've marked as Exhibit No. 7 for

11  identification. And for the record, this is an

12  article that is entitled, "How long do---"

13  Is it "nosocomial"?

14  A             Yes.

15  Q             "--- nosocomial ---" n-o-s-o-c-m-

16  i-a-1 "--- pathogens persist on inanimate

17  surfaces? A systematic review."

18  Now, have you seen this article

19  before? 

20  A             I have.

21  Q             And what was this article

22  attempting to review?

23  A             This article is a synthesis of

24  other studies that looks at how long germs -- how


 1  long microbes can live on surfaces.

 2  Q             Okay. And are the findings of this

 3  article widely accepted within the scientific

 4  community as authoritative and accurate?

 5  A             Yes.

 6  Q             And is MRSA a nosocomial pathogen

 7  as was reviewed in this article?

 8  A             It is.

 9  Q             And is there any finding in this

10  article that discusses how long MRSA lives in the

11  environment? 

12  A             Yes. They look at the studies that

13  have looked at the survival of Staphylococcus

14  aureus, the species. And so they identify six

15  articles. 

16  Q             Okay. And how long, according to

17  this article, does MRSA exist or survive within

18  the environment? 

19  A             So they report a range of seven

20  days to seven months on Table 1.

21  Q             So less than seven days, and up to

22  seven months; is that correct?

23  A             That's the range.

24  Q             Right. Okay. Now, if one were to


 1  vacuum the floor, would MRSA continue to survive?

 2  A             Yes.

 3  Q             Okay. So vacuuming won't get rid

 4  of it; is that correct?

 5  A             It doesn't eliminate it. It would

 6  reduce the number of microbes.

 7  Q             But they would continue to exist on

 8  the carpet, for example?

 9  A             Yes.

10  Q             Okay. Now, this article reaches

11  certain conclusions; is that correct?

12  A             Yes.

13  Q             And what conclusion does it reach?

14  And I think it's on the bottom of page one.

15  Could you read that for us?

16  A             Yes. "The most common nosocomical

17  pathogens may well survive or persist on surfaces

18  for months and can thereby be a continuous source

19  of transmission if no regular preventive surface

20  disinfection is performed."

21  Q             Okay. And do you agree with that

22  finding? 

23  A             I do .

24  Q             All right. Now -- and this article


 1  also discusses various other pathogens that

 2  survive for periods of time; correct?

 3  A             Yes. 

 4  Q             And it appears that there are

 5  numerous ones; is that right?

 6  A             Yes. 

 7  Q             And would you agree with that as

 8  well?  

 9  A             Yes.

10  Q             And are the ones that are listed in

Iiithis article that survive also dangerous to human 12 health?

13  A             Yes.

14  Q             I may have asked you this, but in

15  case I didn't, MRSA would be found on the floors

16  of public libraries; correct?

17  A             Yes.

18  Q             And would it be common to find it

19  on public library floors?

20  A             Yes.

21  Q             Now, in your experience as a nurse

22  practitioner and epidemiologist, are there also

23  pathogens or potential disease-causing agents

24  that are found in human vomit?


 1  A             Yes.

 2  Q             And if one were to step in the

 3  residue of vomit and had a cut or a lesion on

 4  their foot and didn't have a shoe on, could that

 5  cause disease or infection?

 6  A             It could.

 7  Q             And would you say the same thing --

 8  are there disease- bearing pathogens in human

 9  feces? 

10  A             Certainly, yes.

11  Q             And again, if one were to step in

12  that and have a cut or lesion in the foot, could

13  that cause disease in human beings?

14  A             Yes.

15  Q             Similarly, in toilet water, were

16  there to be an overflow of toilet water in a

17  men's room or otherwise, and were one to step in

18  that or in the residue of that, would there be

19  disease-bearing pathogens in that?

20  A             You would expect that that could be

21  true, yes.

22  Q             Okay. And what about human saliva?

23  A             Probably less potential to cause

24  disease, but still, a potential mode of


 1  transmission.

 2  Q             Okay. Now, of these items that

 3  I've just listed, a parade of horribles -- vomit,

 4  feces, toilet water, urine, saliva -- if these

 5  are cleaned with standard public facility type

 6  cleaning, can residue still remain?

 7  A             It can, yes.

 8  Q             And could the microbes that remain

 9  still bear risk to human health were they to get

10  into a cut or into the bloodstream of a human

11  being?

12  A             Yes.

13                MR. DOLIN: If I may just have a

14  moment, Your Honor?

15                THE COURT: Yes.

16                         - - -

17                Thereupon, Defendant's Exhibit No.

18  8-A through 8-G were marked for purposes of

19  identification.

20                         - - -

21  Q             Professor Landers, I'm going to

22  show you what we've marked for identification as

23  Exhibit 8 collectively. They're clipped

24  together. And it's Exhibit 8-A through G


 1  sequentially.

 2  Professor Landers, if you'd take a

 3  look at Exhibits 8-A through G. And I'm just

 4  going to stand over your shoulder a little bit.

 5  A             Sure.

 6  Q             And for the moment, I would

 7  represent to you that these are photos of the

 8  Fairfield County Public Library. Ms. Steiner

 9  will testify about that later.

10  A             Okay.

11  Q             Do you see in Exhibit A that there

12  is a floor surface? And is that the kind of

13  surface where you would expect to find MRSA?

14  A             Well, it's a floor surface ---

15  Q             It's carpet.

16  A             If it's carpeted, yes.

17  Q             Okay.

18  A             Actually, even if it weren't, yes.

19  Q             Okay. And the second picture is a

20  photo of a men's room urinal with a tile floor.

21  That's Exhibit B, 8-B.

22  A             Yep.

23  Q             And again, is that -- and again,

24  I'll represent that that's part of the Fairfield


 1  County Public Library.

 2  Is that a surface that one would

 3  find MRSA in?

 4  A             Yes.

 5  Q             Similarly, I'm going to show you

 6  Exhibit 8-C, as in Charlie. That's a stairwell

 7  that I'll represent is the Fairfield Public

 8  Library.

 9  And is that a surface on which one

10  would find MRSA and other disease-bearing

11  pathogens? 

12  A             Yes. You would expect to, yes.

13  Q             Again, Exhibit D is the photograph

14  of a toilet in the men's room of the Fairfield

15  Library. And again, would one expect to find on

16  the floor and other surfaces there MRSA?

17  A             Yes.

18  Q             I show you another carpeted area in

19  the library. Does this appear also to be -- this

20  is Exhibit E, as in Edward.

21                And I'll just say E, F, G and H, if

22  you'd look at all the surfaces in those areas,

23  and with particular attention to the floor, and

24  tell us if those are areas on which one would


 1  find MRSA?

 2  A             Certainly, across all those

 3  surfaces, yes. The water fountain, yes.

 4  Q             Okay.

 5  A             Even though it appears to be

 6  clean--- 

 7  Q             Uh-huh.

 8  A             --- in those photos, what we would

 9  call clean, we would still, certainly, be able to

10  recover staph and MRSA from those surfaces.

11                MR. DOLIN: If I may, Mr. Neinast,

12  do you have any objection if I put those into

13  evidence? 

14                MR. NEINAST: Not at all.

15                MR. DOLIN: Okay. Your Honor, I'd

16  move these exhibits into evidence, 8-A through G.

17                THE COURT: And did you want to

18  talk about 6 and 7?

19                MR. DOLIN: Yes. I'd actually like

20  to move those into evidence as well?

21                THE COURT: Mr. Neinast?

22                MR. NEINAST: That's fine.

23                THE COURT: Okay.

24                MR. DOLIN: Thank you, Your Honor.


 1                THE COURT: Defendant's Exhibits 6,

 2  7 and 8-A through H ---

 3                MR. DOLIN: G.

 4                THE COURT: --- G are admitted into

 5  evidence without objection.

 6                         - - -

 7                Thereupon, Defendant 's Exhibits

 8  Nos. 6, 7, and 8-A through 8-G were admitted into

 9  evidence. 

10                         - - -

11  Q             (By Mr. Dolin) So you would

12  expect, in the surfaces shown in Exhibit 8-A

13  through G, that if you were to take a swab, that

14  you would find MRSA on each of those surfaces; is

15  that correct? 

16  A             Yes.

17  Q             Just briefly, what do you -- I use

18  the word "swab." Tell me what you mean by a

19  swab. 

20  A             Sure. Well, you could read my

21  paper, but it's a Q-tip, essentially, a long,

22  scientific, sterile Q-tip with a polyester dacron

23  or cotton tip.

24  Q             In these types of surfaces, would


 1  it be possible for you to take a swab and not

 2  find MRSA?

 3  A             It would depend on your sampling

 4  technique. It would be -- yeah, it would be

 5  inconceivable that you would sample properly a

 6  large enough area and not find MRSA.

 7  Q             All right. Now, during the period

 8  of time where you've discussed MRSA and the fact

 9  that they can -- during the period of time that

10  they're alive, that they can spread into the

11  human bloodstream. And can you, again, just tell

12  us the kind of disease that they're capable of

13  causing if they do get into the human

14  bloodstream?

15  A             Sure. Well, in humans in the

16  community-based setting, the most common

17  infections are abscesses and boils. So these are

18  skin, soft tissue infections that then can grow

19  into the bloodstream and other connecting

20  tissues. So these are, you know, usually boils,

21  abscesses that can grow and have pustule

22  discharge.

23  Q             What we would call pus?

24  A             Right.


 1  Q             Okay. And it's possible, as you

 2  indicated, that in many cases, MRSA actually

 3  kills people every year; is that correct?

 4  A             Yes, uh-huh.

 5  Q             So one could get a high fever and

 6  other more severe symptoms; is that correct?

 7  A             Yes.

 8  Q             Okay. Now, in the years you

 9  practiced as a nurse practitioner, would it be

10  safe to say that you treated thousands of

11  patients? 

12  A             Yes.

13  Q             And is it -- in your experience, is

14  it common for people to have cracks or cuts on

15  the soles of their feet, on the skin of their

16  feet? 

17  A             Yes.

18  Q             And can MRSA enter the human

19  bloodstream through cracks of the skin of the

20  feet?

21  A             Any -- yes. Any impaired barrier,

22  yes.

23  Q             And again, if someone were to have

24  cracks in the skin of their feet and walk over an


 1  MRSA-laden surface, they would be at a higher

 2  risk for getting the disease; correct?

 3  A             That's right. For MRSA

 4  acquisition, yes.

 5  Q             Now, would one be safer, in your

 6  experience, or less prone to get MRSA on an MRSA-

 7  laden floor or carpet, if one were to wear shoes?

 8  A             It would seem -- there would be

 9  less localized skin damage and the risk for

10  transmission would be lower, both from the carpet

11  to the individual and from the individual to this

12  public pool, reservoir, of bacteria.

13  Q             Okay. So in general, it would be a

14  more -- wearing shoes would diminish the

15  possibility of the spread of the disease or of

16  catching the disease; is that correct?

17  A             That would be reasonable, yes.

18  Q             Okay. Now -- okay. So if one were

19  to walk on the surfaces shown there barefoot with

20  a crack or a lesion on the foot -- these are the

21  ones in 8-A through H -- you would be at

22  increased risk for exposure to MRSA; is that

23  correct?

24  A             Of acquisition ---


 1  Q             Yes.

 2  A             --- but also of cross-contaminating

 3  the surface. 

 4  Q             So you could actually spread it as

 5  well. 

 6  A             Right.

 7  Q             So in general, you would agree that

 8  the less skin you have in contact with an MRSA-

 9  laden surface, the less chance that you would, in

10  fact, either get the disease or spread the

11  disease; is that correct?

12  A             Absolutely. That's why we wear

13  gloves in the hospital.

14  Q             Okay. Now, in your view, is

15  wearing shoes an effective way to prevent the

16  spread of that disease as opposed to going

17  barefoot? 

18  A             It would be one way, yes.

19  Q             Okay. And in your view, is a rule

20  in a public facility that imposes a shoe rule

21  that you must wear shoes a reasonable and

22  effective way to diminish or limit the spread of

23  MRSA and other pathogens?

24  A             That would be reasonable. I think


 1  the efficacy, it would be reasonable to assume

 2  that would be helpful.

 3  Q             Okay. Thank you.

 4                MR. DOLIN: If I may have a moment,

 5  Your Honor? 

 6                THE COURT: Yes.

 7                MR. DOLIN: And I think we have

 8  moved into evidence 1 through 8, so I have no

 9  further questions at this time.

10                THE COURT: Mr. Neinast, you may

11  cross-examine. 

12                         - - -

13                   CROSS-EXAMINATION


15  Q             First, I apologize. I'm a pro se,

16  so I may not do things as smoothly as Mr. Dolin

17  did; but I will do the best I can.

18  How do I address you? Professor

19  Landers? 

20  A             That would be fine.

21  Q             That's fine. Okay.

22  Are you being paid for this

23  testimony? 

24  A             I am not.


 1  Q             You're not being paid. Okay. How

 2  many times have you testified as an expert

 3  witness before?

 4  A             I have not testified as an expert

 5  witness before.

 6  Q             Okay. Did you meet with the

 7  opposing attorney in advance of your testimony?

 8  A             I did, yes.

 9  Q             And did you -- for how many times?

10  For how long?

11  A             We had two consultations. The

12  first one was 10 or 15 minutes. The second time

13  was 20 to 30 minutes.

14  Q             Okay. Thanks. And did you

15  rehearse any possible questions and answers?

16  A             The types of questions, yes.

17  Q             Okay. And how did you prepare for

18  your testimony today?

19  A             I didn't get any specific

20  preparation for today.

21  Q             Okay.

22  A             Besides those meetings.

23  Q             Okay. So this is based on the

24  knowledge that you have acquired and have as part


 1  of your daily workload and that sort of thing?

 2  A             Yes. Right.

 3  Q             Okay. The record in this case

 4  contained many scientific papers that I have

 5  referenced. Did you read them, any of them, all

 6  of them? 

 7  A             I did not, no.

 8  Q             You did not look at any of the

 9  papers that I have put forth?

10  A             Correct. I did not have a chance.

11  I was not aware of that.

12  Q             Okay. As a general rule, we

13  accepted a couple scientific papers. I mean, if

14  they're peer-reviewed, if there's introductory

15  material in them, as a general rule, that can be

16  generally considered pretty authoritative if

17  they're in a reputable peer-reviewed kind of a

18  journal? 

19  A             Yes. I mean, the findings would be

20  accepted.

21  Q             Pretty much -- and particularly if

22  it's in an introduction. Introductory sections

23  usually are just a recap of the existing core of

24  knowledge. So those would be particularly


 1  trustworthy?

 2  A             I would say that the introductory

 3  frames the particular research question, and it

 4  would be the methods and results that would be

 5  the most kind of rigorous. The introductory

 6  would be the author's supposition of what the

 7  state of the science is.

 8  Q             Okay. But since that went through

 9  peer review, that would mean that the reviewers

10  would have looked at that. If there had been

11  anything in there that was really off, they would

12  not have -- they would have sent the paper back

13  and said, "Hey, you need to fix this"; is that

14  correct? 

15  A             Although reviewers ---

16                MR. DOLIN: I'm going to object a

17  little bit. I think it's a little too general,

18  Your Honor, to be applicable here.

19                THE COURT: Overruled.

20  Go ahead.

21  A             So you would expect that reviewers

22  would review the entirety of the paper, with

23  particular attention to the methods and results.

24  Q             Okay. Thank you.


 1  I had also written a short essay

 2  that I sent the library called "Issues Regarding

 3  Safety." I'm guessing you didn't see that

 4  either? 

 5  A             I did not.

 6  Q             So let me confirm. You're

 7  basically presenting yourself as an expert in

 8  epidemiology. Also in nursing? Did you have a

 9  nursing -- since you're a CNP, which is a nurse

10  practitioner, you did have a practice where you

11  saw patients on a regular basis?

12  A             I did and do.

13  Q             And you still do. Okay. Thank

14  you. 

15  Did you have any particular course

16  work or whatever on hazards of footwear?

17  A             No.

18  Q             Okay. You're required to do

19  continuous training ---

20  A             Yes.

21  Q             --- for your certification?

22  In your various courses, how much

23  training did you have on the human foot?

24  A             Well, in particular, disease


 1  states, assessment of the foot would be not only

 2  something that I studied, but something that I

 3  teach and practice.

 4  Q             Okay. But that's on disease

 5  states. Okay.

 6  In preparing for this testimony,

 7  did you carefully examine the Fairfield County

 8  Library and its branches?

 9  A             I did not.

10  Q             So basically, the photographs there

11  are your first introduction to the Fairfield

12  County District Library?

13  A             That's correct, yes.

14  Q             Okay. Have you had course work in

15  risk evaluation?

16  A             Uh-huh.

17  Q             And trade-offs and benefits of one

18  -- that if you improve in one area, it can make

19  things worse in others, and back and forth.

20  A             Yes.

21  Q             Okay. Getting back more to your

22  earlier testimony there with Mr. Dolin. When he

23  was asking about the ubiquity of MRSA, he said,

24  "Is there any right here?" And you said, "Yes."


 1  Is that correct?

 2  A             Yes, it's likely to be recovered

 3  from that surface, yes.

 4  Q             Okay. So he just touched that with

 5  his bare hand; is that correct?

 6  A             Yes.

 7  Q             So if he had any cuts on his bare

 8  hand, he has just put himself in jeopardy of

 9  being infected with MRSA.

10  A             Correct.

11  Q             That is correct. Okay.

12  In fact, that's with hands in

13  general.

14  A             Yes.

15  Q             Is it true that in order to catch

16  MRSA, generally -- well, this might be too ---

17  Most folks who get MRSA -- well,

18  let's say, what percentage of folks who get MRSA

19  are immuno-compromised?

20  A             It's certainly -- being immuno-

21  compromised is a risk factor to get MRSA. Most

22  people who get MRSA actually are not immuno-

23  compromised.

24  Q             Okay. And I guess for the Court,


 1  would you please define immuno-compromised?

 2  A             Sure. Patients who are taking

 3  drugs that suppress their natural immune

 4  response.

 5  Q             Okay. What percentage of the cases

 6  of MRSA come from hospitals, from hospital

 7  Visits? 

 8  A             Well, we track hospital visits --

 9  hospital MRSA a lot more closely than outpatient

10  MRSA is tracked. But at Ohio State, we've seen

11  that most of the clinically-identified MRSA

12  actually occurs in the community, because there's

13  so many more people out there.

14  Q             Okay. Let me ask a question about

15  epidemiology and the MRSA and risk of spreading

16  it. 

17                We'll be bringing up in the future

18  that practically no other place excludes people

19  having bare feet. Okay? And I will be 

20  testifying to that myself later.  

21                What is the epidemiological  effect

22  of excluding bare feet only in libraries and

23  nowhere else? How good is that at preventing the

24  spread of disease, of your MRSA disease, or


 1  getting infections or something like that?

 2  A             So you're asking that one specific

 3  rule in the overall scheme, how important is one

 4  specific rule about footwear in a library?

 5  Q             Correct.

 6  A             How important it is?

 7  Q             Correct.

 8  A             So that one intervention would

 9  likely -- would be likely, in the overall scheme,

10  to have a relatively small impact.

11  Q             Okay. So a relatively small

12  impact. In other words, if somebody goes

13  barefoot everywhere, zillions of places, and

14  there's just one little spot that they're not

15  allowed to go barefoot, then probably there is

16  almost an insignificant risk in comparison to all

17  the other places that don't care about bare feet.

18  A             Right. So as part of a strategy,

19  it could be effective. As far as a public health

20  strategy of public places, right.

21  Q             Okay. Who's normally in charge of

22  public health strategies?

23  A             Well, I guess, it depends on where,

24  you know. In public places, certainly, the Board


 1  of Health, facility administrators, school

 2  principals, hospital managers.

 3  Q             Okay. So are you aware that no

 4  Board of Health actually prohibits bare feet in

 5  public buildings?

 6                MR. DOLIN: I'm going to object to

 7  the question. It assumes facts that are not in

 8  evidence.

 9                MR. NEINAST: Your Honor, could we

10  just take judicial notice of it?

11                THE COURT: I mean, there has to be

12  some basis for it?

13                Do you know the answer to that

14  question?

15                MR. LANDERS: I do not know the

16  answer to that question.

17  Q             (By Mr. Neinast) You've never

18  investigated it?

19  A             I have not.

20  Q             Okay. When I get around to

21  testifying, then I'm going to have to handle

22  that.

23  Do you ever go barefoot yourself?

24  A             Yes.


 1  Q             Where?

 2  A             At the beach, at home, in the

 3  shower. 

 4  Q             Okay. Is there MRSA at the beach?

 5  A             Yes.

 6  Q             And you go barefoot there?

 7  A             Uh-huh.

 8  Q             You don't wear shoes.

 9  A             Correct.

10  Q             You're not concerned about cracks

11  on your feet? 

12  A             I would be -- I am concerned.

13  Q             Okay. But you don't do anything

14  about it? 

15  A             Right.

16  Q             Okay. Would it be reasonable for

17  the beach -- Ohio State park, Alum Creek beach,

18  would it be reasonable for them, then, to require

19  a footwear rule if MRSA is everywhere? In your

20  professional opinion, should they make the

21  footwear rule? 

22  A             So on the sand beach or ---

23  Q             Yes.

24  A             I don't think that that -- I think


 1  when people go to the beach, they have a certain

 2  level of expectation that that's part of what

 3  happens. So I don't think that they would need

 4  to impose that rule.

 5  Q             Okay. But you don't think that a

 6  person who goes barefoot regularly, goes into a

 7  library, would not have an expectation -- a

 8  similar expectation?

 9  A             You're asking me what somebody who

10  goes barefoot would think.

11  Q             Yeah. I'm surprised opposing

12  counsel didn't object to that one.

13  So is there MRSA in your bathroom?

14  A             Yes.

15  Q             The bathroom you go barefoot in?

16  A             Yes.

17  Q             And once again, why do you go

18  barefoot in your bathroom?

19  A             I think it's a question of what --

20  of who I know goes in the bathroom.

21  You're talking about my bathroom at

22  home?

23  Q             Sure. I mean, does it depend on

24  whether it's your MRSA or somebody else's MRSA as


 1  to why you would go in the bathroom?

 2  A             No, no, it wouldn't matter.

 3  Q             Okay.

 4  A             Right.

 5  Q             Okay. Going back to Mr. Dolin.

 6  Should he have been wearing gloves when he did

 7  this? 

 8  A             No.

 9  Q             You know that without looking at

10  his hands to see if he's got a cut on it?

11  A             If he had an open, draining lesion,

12  then he should have been -- the lesion should

13  have been covered and dry.

14  Q             Okay. And presumably, he would

15  know about that?

16  A             Right.

17  Q             If he had one.

18  A             Yes.

19  Q             I mean, he could have gotten -- if

20  it's scabbed over, is it okay?

21  A             It should still be covered until

22  it's healed.

23  Q             Okay. But I thought scabs did a

24  pretty good job of helping keep out pathogens. I


 1  mean, that's the whole point of it. And the

 2  structure that goes in through that is pretty

 3  good. I mean, it's a lot better than oozing;

 4  correct?

 5  A             It's better than oozing, no doubt.

 6  Q             But it's not as good as fully in-

 7  tact keratinized skin.

 8  A             Correct.

 9  Q             Okay. Is MRSA also on book covers?

10  A             It's likely, yes.

11  Q             So that every person who goes into

12  this library and picks up a book with their

13  hands, their bare skin, is exposing -- and if

14  they've got cuts on their hand, once again, they

15  are also exposing themselves to MRSA; is that

16  correct?

17  A             It's ubiquitous. I would be

18  throughout the environment.

19  Q             It is ubiquitous.

20  A             Right.

21  Q             So, would it be reasonable, then --

22  ought the library to also create a rule requiring

23  gloves in order to use the library?

24  A             For the use -- so that would be a


 1  porous-touched surface; right?

 2  Q             Yes. Most book covers, I think,

 3  are ---  

 4  A             Porous; right? 

 5  Q             Yes. 

 6  A             Wood paper. So people, I think,

 7  have an expectation about that kind of surface.

 8  Q             So this is not all about 

 9  transmission of disease or whatever. It's all

10  about expectation.  

11                MR. DOLIN: I'm going to object.

12  I'm not quite sure I understand the question.

13                MR. NEINAST: Your Honor, he's

14  trying to say that exposure to MRSA is really

15  important ---  

116              THE COURT: I'll overrule. Go

17  ahead.

18  Q             Okay. So exposure to MRSA is very

19  important unless somebody has an expectation that

20  -- of something or other. What expectation is it

21  that suddenly makes it okay to touch surfaces

22  with bare skin that might have MRSA?

23  A             It would be the kinds of things

24  that a typical person would do, say, after using


 1  the toilet or after -- you know, before they eat.

 2  Q             That doesn't make it any less safe

 3  or less unsafe. Since it's something they do

 4  every day, they don't think about it. And if

 5  somehow ---

 6  I'm sorry. That'll be a duplicate,

 7  so answer that first.

 8  A             So, again, what was ---

 9  Q             I'm sorry. I lost track.

10                So it's okay to be exposed to these

11  things as long as you expect that you're -- as

12  long as it's an everyday sort of thing and that

13  you are a typical person?

14                MR. DOLIN: I'm going to object,

15  Your Honor. I think it's asking the witness to

16  get into the mind of an individual, and I don't

17  think he can do that.

18                MR. NEINAST: The question was

19  about his professional opinion as to -- since

20  he's talking about expectations, that ---

21                THE COURT: Overruled. Go ahead.

22  A             I need the question just one more

23  time. Sorry.

24                MR. NEINAST: Is there anybody here


 1  that can read the question back?

 2                THE COURT: No, there's not a court

 3  reporter. These are being -- this proceeding is

 4  being recorded electronically, but we do not have

 5  a court reporter in the courtroom to read it

 6  back.

 7                MR. NEINAST: Okay. Thank you.

 8  Q             (By Mr. Neinast) So it sounds like

 9  you're saying that it is okay to be exposed to

10  MRSA -- it's not objectionable to be exposed to

11  MRSA as long as it is part of your everyday

12  activity and you are a typical person; is that

13  correct?  

14  A             We are -- we live in an environment

15  and we all take steps to mitigate our exposure to

16  these bacteria. We do. So things -- like cough

17  etiquette.  

18                So it's not necessarily a

19  particular exposure. It's the environment in

20  which we live.

21  Q             So it's up to each individual

22  person to look after themselves more or less, as

23  long as it doesn't become a full-blown -- you

24  know, where the disease is an epidemic or


 1  anything.

 2  A             Right.

 3  Q             It's generally up to each person to

 4  decide for themselves the level of the risk that

 5  they are willing to accept based upon the fact

 6  that it's their bathroom or whatever else.

 7  A             So that would be true at home. But

 8  in -- I mean, this is the difference with

 9  epidemiology is that the decisions that one group

10  of people make have an impact, on a public health

11  prospective, on another group of people. So it's

12  not -- the goal of public health is not

13  necessarily mitigating individual risk. It's

14  mitigating population risk.

15  Q             Okay. So how does a footwear rule

16  in a library help mitigate the overall risk?

17  A             You would expect that there would

18  be less introduction of pathogens from the

19  interdigital space onto the shared public

20  surfaces.

21  Q             Don't shoes contain tread and all

22  sorts of stuff that's also as good as

23  interdigital spaces for collecting and

24  transmitting MRSA?


 1  A             Well, they're not as good as.

 2  Q             But they still do some.

 3  A             They do so, yes.

 4  Q             Okay. You were talking earlier

 5  about cracks in the soles of the feet.

 6  A             Right.

 7  Q             And that would certainly be a

 8  method of transmission. You've also said that

 9  MRSA is ubiquitous.

10  A             Yes.

11  Q             Is there MRSA inside your shoe?

12  A             There may be.

13  Q             There's a good chance of it?

14  A             Uh-huh.

15  Q             Is there pseudomonas aeruginosa,

16  assuming I pronounced it correctly?

17  A             Yes, pseudomonas. There certainly

18  is.  

19  Q             There certainly is. Okay.

20  So if you have -- since there's

21  MRSA in your shoes and you go and you put on your

22  shoe and you've got a crack in your foot, you're

23  exposing yourself to this MRSA; correct?

24  A             Yes. 


 1  Q             As a matter of fact, is it not the

 2  case that when your foot is inside -- if you're

 3  walking across the floor barefoot, at least half

 4  the time your foot is up in the air and not being

 5  exposed to MRSA?

 6  A             We've seen ---

 7  Q             Something like that.

 8  A             Right, right.

 9  Q             I mean, maybe not half, but as a

10  general rule.

11  A             Right.

12  Q             When your foot is inside the shoe,

13  it's being exposed -- with your cracks, it's

14  being exposed to MRSA all the time; is that not

15  correct? Pretty much?

16  A             Right. It would be in the

17  environment, right.

18  Q             It's right there. So, in other

19  words, all these shod people are actually

20  probably getting more exposure to MRSA in their

21  shoes than a barefoot person walking. Is that a

22  fair assessment?

23  A             That would be a very interesting

24  study. I don't think I can comment on ---


 1  Q             There's no -- yeah, there's no

 2  study that took that on. Okay.

 3  A             That would be interesting to do.

 4  Q             Okay. You talked a bit about

 5  cross-contamination, how MRSA is spread, that

 6  sort of stuff, and you mentioned that that's why

 7  you folks wear gloves in hospitals; correct?

 8                The interiors of those gloves are

 9  sterilized so that when you're doing -- it's

10  really more, the real purpose of gloves in a

11  hospital is so that you can treat one patient --

12  it's not so much to prevent you from exposure,

13  but it's in order to treat one patient, make sure

14  you rip off the gloves, then get a new pair of

15  gloves to put them on to make sure that you're

16  not transmitting it from one patient that had

17  something to a different patient. Is that the

18  main purpose of surgical gloves?

19  A             Surgical gloves, which would be

20  sterile ---

21  Q             Right.

22  A             And so, actually -- and it would be

23  for both purposes, to protect you from acquiring

24  a resistant organism and protect other patients


 1  from you transmitting it to them.

 2  Q             Right. So if you use the same

 3  glove twice, then you can get in all sorts of --

 4  that really raises the risk, particularly when,

 5  with patients, you're touching areas that are

 6  much more sensitive to being infected with MRSA.

 7  A             Correct.

 8  Q             Okay. Do you know anything about

 9  the source of damage that shoes can do to feet?

10  A             Yes.

11  Q             So I can ask you some questions in

12  that regard?

13  A             Sure. Am I experienced as a nurse

14  practitioner? I've seen patients who have had

15  altered skin integrity.

16                         - - -

17                Thereupon, Plaintiff's Exhibit No.

18  21 was marked for purposes of identification.

19                         - - -

20                MR. NEINAST: This is going to be

21  21.

22  May I approach?

23                THE COURT: Yes.

24  Q             Could you tell me what's wrong with


 1  that foot? What is that?

 2  A             It appears to me that the -- you

 3  know, without examining the person ---

 4  Q             I see.

 5  A             --- my experience as a nurse

 6  practitioner, that there appears to be a

 7  (inaudible) deformity, some deformity of the

 8  first nail bed, perhaps onychomycosis, and

 9  there's some redness around the joint.

10  Q             Okay. I actually took this just

11  right off a thing on bunions.

12  What generally causes bunions?

13  A             It's a deformity in the shape of

14  the bones.

15  Q             Right. But what's the -- what are

16  the risk factors? What's the most prevalent risk

17  factor for developing a bunion?

18  A             As a clinician, I would say

19  advancing age. 

20  Q             That's it? Okay.

21                MR. NEINAST: Give me just a

22  second, Your Honor. I'm afraid I only have two

23  copies of this, so I may have to pass it around.

24  Q             Are you familiar with the Journal


 1  of Bone and Joint Surgery?

 2  A             I've heard of it.

 3  Q             Okay. It ought to be

 4  authoritative? 

 5  A             It's not a journal in my field,

 6  so--- 

 7                MR. NEINAST: Okay. What I've got

 8  here, Your Honor, is an article from the Journal

 9  of Bone and Joint Surgery. It's from 1996. The

10  author is Michael Coughlin, C-o-u-g-h-l-i-n.

11  It's entitled "Hallux Valgus." Hallux valgus is

12  the scientific term for bunions.

13  And it's actually marked as part of

14  their series on an internet instructional course

15  lecture from the American Academy of Orthopedic

16  Surgeons. 

17  May I approach?

18                THE COURT: Yes.

19                MR. NEINAST: Do I have to ask each

20  time or should I - --

21                THE COURT: No, go ahead. You can

22  go ahead. 

23                MR. NEINAST: Okay. Thank you.

24  Q             (By Mr. Neinast) If you could read


 1  for me the section marked by the arrow, starting

 2  right here with "Hallux valgus," and finishing

 3  with that.

 4                MR. DOLIN: I'm going to object to

 5  it being into the record. It hasn't been

 6  authenticated as authoritative. He's not an

 7  expert in this field and does not -- this is not

 8  a journal in his field of expertise.

 9                THE COURT: Are you familiar with

10  this article at all?

11                MR. LANDERS: I am not, no.

12                MR. NEINAST: Your Honor, he's

13  talking about bunions. This is an instructional

14  series on bunions. He practices with bunions. I

15  don't know any other way to make it -- get it

16  into the record. I'd ask for a little leeway. I

17  do know that with evidentiary hearings, the Rules

18  of Evidence don't necessarily have to be quite as

19  strict.

20                THE COURT: Mr. Dolin?

21                MR. DOLIN: Your Honor, he wasn't

22  testifying about bunions at all. He was cross-

23  examined about bunions. 

24  So, at this point, this is hearsay.


 1  It hasn't been authenticated as authoritative,

 2  and I renew my objection.

 3                THE COURT: What I think you're

 4  attempting to do, Mr. Neinast, he testified --

 5  you asked him a question about bunions. That was

 6  not objected to. He testified that bunions are a

 7  deformity in the shape of the bones. And then I

 8  think you asked him something to the effect of

 9  what's the leading cause of bunions.

10                MR. NEINAST: Correct.

11                THE COURT: And he said advanced

12  age. And that's when we got into this article,

13  because, apparently, advanced age wasn't the

14  answer you were anticipating or hoping that the

15  witness would give. Is that correct?

16                MR. NEINAST: That is correct.

17                THE COURT: Okay.

18                MR. NEINAST: Let me just ask a

19  different question that might obviate this.

20                THE COURT: I mean, you can ask him

21  a question. If he knows the answer or if he

22  gives an answer, you can ask him about that. But

23  since he's not familiar with this article or this

24  area, I'll sustain the objection, Mr. Dolin's


 1  objection.

 2                MR. NEINAST: Okay.

 3  Q             (By Mr. Neinast) Would it surprise

 4  you to hear that the main reason that bunions

 5  occur is from footwear that's too tight?

 6                MR. DOLIN: Again, I'll object to

 7  that, Your Honor.

 8                THE COURT: Overruled.

 9  If you know the answer.

10                MR. LANDERS: He's asking for

11  whether it would surprise me or not?

12                THE COURT: Yes.

13  A             It would not surprise me.

14  Q             Okay. In your experience, as part

15  of your training or anything, did they ever say

16  that to you? Did you ever get that in any of

17  your course work or anything, that while there is

18  some genetic component to be able to get bunions,

19  that footwear -- any footwear is the major cause,

20  particularly high heels?

21  A             I was not familiar with that.

22  Q             You are not familiar with that?

23  A             Right.

24  Q             Okay. I'll take this back then.


 1  Let me ask something else about --

 2  it's my contention that wearing shoes do all

 3  sorts of nasty things to feet.

 4                MR. DOLIN: I'll object to the

 5  remark. 

 6                THE COURT: Ask it in a question

 7  form rather than you making -- you're not the

 8  witness, at least not yet.

 9                MR. NEINAST: I apologize, Your

10  Honor. 

11                THE COURT: That's okay.

12  Q             Let's see. You never read any of

13  the studies that were already in the record for

14  this; correct? 

15  A             Correct.

16  Q             So do you know anything about the

17  hazards or the sorts of damage that shoes can do

18  to feet? 

19  A             Just based on my clinical

20  experience. 

21  Q             Okay. Can you tell us something

22  about that? 

23  A             Well, what we call skin integrity

24  is important to preventing germs or microbes from


 1  entering and causing an active infection, and

 2  that ill-fitting footwear can result in

 3  alterations in skin integrity, which can be a

 4  portal for entry for these organisms.

 5  Q             Okay. So you don't know anything

 6  about bunions being caused by high heels, more or

 7  less? You know very little ---

 8  A             Right.

 9  Q             You know very little about high

10  heels shortening the Achilles tendon?

11  A             Correct.

12  Q             Do you know anything about actually

13  -- that wearing shoes actually predisposes people

14  to getting flat feet that bother them?

15                MR. DOLIN: Your Honor, I'm going

16  to object.

17                MR. NEINAST: I'm asking him if he

18  knows these things.

19                MR. DOLIN: I think ---

20                THE COURT: Just a minute.

21                MR. NEINAST: I'm sorry. My

22  apologies.

23                MR. DOLIN: I understand this is

24  cross-examination. It impresses me that this is


 1  getting a little bit far afield from the purposes

 2  of the hearing and the witness' testimony.

 3                THE COURT: Overruled. Go ahead.

 4  Go ahead, Mr. Neinast.

 5                MR. NEINAST: That was good enough.

 6  Q             (By Mr. Neinast) If one is doing

 7  risk management and trying -- particularly if,

 8  generally, a person has to decide for themselves

 9  how to balance risks, okay, and on one side we've

10  got this risk called MRSA, and on the other side,

11  we have this risk that footwear can damage feet

12  in various ways, you are not the sort of expert

13  that can help us balance those risks; is that

14  correct?

15  A             At the individual level, that is

16  correct.

17  Q             At the library level, in that they

18  also have to make a call -- they've got to make

19  the judgment call, we've got this set of risks,

20  we've got this set of risks, you're not an expert

21  that can help sort that out?

22  A             Well, as far as the types of

23  interventions that communities should implement

24  to try to prevent MRSA transmission in


 1  particular, that is my area.

 2  Q             Right. But you cannot -- your area

 3  is not to evaluate and balance these sort of

 4  risks that the library is trying to do without

 5  any expertise at all?

 6  A             My area would be on what strategies

 7  could be implemented ---

 8  Q             Could you just answer the question?

 9                MR. DOLIN: I think he's trying to,

10  Your Honor.

11                THE COURT: Let him ---

12                MR. NEINAST: I'm sorry.

13                THE COURT: Go ahead.

14  A             So my area would be on what public

15  health interventions would be appropriate to

16  control the spread of resistant organisms such as

17  MRSA.

18  Q             And only that.

19  A             It has implications for

20  transmission of other resistant organisms as

21  well.

22  Q             Okay. Let's see. Once again, in

23  preparation of this, you did not read my

24  affidavit detailing some of the places I've gone


 1  barefoot; is that correct?

 2  A             Yes.

 3                MR. NEINAST: Your Honor, I'm going

 4  to put that in the record eventually, but if I

 5  could ask some questions about -- regarding that

 6  right now? Is that okay?

 7                THE COURT: Go ahead.

 8  Q             In my affidavit, I stated that I've

 9  hiked over 925 miles barefoot, mostly in

10  southeastern Ohio. And actually, at this point,

11  it's up to 1,300 miles.

12  What are your thoughts on that?

13                MR. DOLIN: Object.

14                THE COURT: Mr. Neinast, I don't

15  know. I think what we need to do is keep it to

16  the library. That's what the Court of Appeals---

17  Wherever else you've gone without

18  -- wherever else you have elected to go without

19  shoes is not the issue.

20                MR. NEINAST: Your Honor, I'm

21  trying to probe just how big of a risk this is.

22  It's being portrayed as a risk that's big enough

23  that the library feels they need to have this

24  rule.


 1                And I'm trying to find out from him

 2  whether that risk really -- it kind of gets back

 3  to my other question about epidemiology, of

 4  taking this one small sector of life and saying,

 5  "We need to have a footwear rule here, because

 6  we're a library," which, quite frankly, sounds

 7  pretty pretextual to me, but that's just me.

 8  And that was argumentative, wasn't

 9  it? I apologize. 

10                THE COURT: That's okay. It's

11  argument.

12                MR. NEINAST: So it seems to me, it

13  would be relevant that if that's really the case,

14  we need to make sure we do know, what are the

15  real risks in all these other locations that do

16  not have it.

17  Or I can just testify on direct

18  without this witness.

19                THE COURT: You can testify --

20  well, I'm not saying in advance what ---

21                MR. NEINAST: Okay.

22                THE COURT: But then, the Court of

23  Appeals' specific words were: The case is

24  remanded to determine if, in fact, Appellee, the


 1  Library, can establish reasons for footwear rule

 2  that applies specifically to Appellee. In other

 3  words, specifically to the library.

 4                The Court of Appeals doesn't seem

 5  -- it doesn't matter to the Court of Appeals what

 6  southeastern Ohio, out in the wilderness, does.

 7  What they want me to find out is if the Library

 8  can establish a reasonable reason to have this

 9  footwear rule in the Fairfield County District

10  Library.

11                MR. NEINAST: And I saying that

12  examining these other areas looks to the

13  unreasonableness of the library's footwear rule.

14                THE COURT: Okay. Go ahead.

15  Q             (By Mr. Neinast) Let's see. In

16  that affidavit, it states that in 2006 and 2007,

17  I participated in Walk to Work with Joe. Did you

18  ever pay attention to that, by any chance?

19  A             No.

20  Q             It's Joe Blundo of the Columbus

21  Dispatch ---

22  A             Oh, actually, I have heard of it,

23  yes.

24  Q             Okay. They seemed to have stopped


 1  doing that. They basically walked from

 2  Worthington down to downtown Columbus, which I

 3  did barefoot.

 4                MR. DOLIN: Again, Your Honor, I'm

 5  going to object. This is testimony. It's not a

 6  question.

 7                THE COURT: You're testifying ---

 8                MR. NEINAST: I'm getting -- I'm

 9  just setting up a question, Your Honor.

10                THE COURT: Okay.

11  Q             Let's try the following, then.

12  Let me check. This whole MRSA

13  problem, as long as your skin is intact, you're

14  pretty much safe from it; correct?

15  A             Well, that would be the catch is

16  that if your skin is in tact, it's correct that

17  you have less risk of infection. However, you're

18  just as likely to pick up the organism and

19  transmit it to another surface where someone who

20  does not have in-tact skin is likely to be.

21                So it's not the individual risk,

22  but the risk to the community.

23  Q             But you also said that shoes can

24  transmit it just as well, depending on what its


 1  sole is like.

 2  A             I don't think I said just as well.

 3  Q             Oh, okay.

 4  A             I think the best habitat would be

 5  the human skin, but it could be transmitted with

 6  footwear as well.

 7  Q             And there are studies that support

 8  that statement?

 9  A             Yes.

10  Q             Okay. Thank you.

11                         - - -

12                Thereupon, Plaintiff's Exhibit No.

13  17 was marked for purposes of identification.

14                         - - -

15  Q             This is a photocopy of the front

16  page of the Lancaster Eagle Gazette from Monday,

17  June 9th, 2009, that has in it a story about a

18  zoological puppet show that was put on at the

19  library. 

20                MR. NEINAST: That may be kind of

21  hard to see, so I've got the blown-up version. I

22  guess I should have asked for an easel, shouldn't

23  I? 

24  So there's a slightly larger


 1  version everybody can look at.

 2                Can I put this into the record?

 3                MR. DOLIN: Objection.

 4                THE COURT: Put what into the

 5  record?  

 6                MR. NEINAST: This photocopy --

 7  this copy of the page of the Lancaster Eagle

 8  Gazette.  

 9                THE COURT: Plaintiff's Exhibit 17.

10                MR. NEINAST: As Exhibit 17, yes.

11                THE COURT: So you're asking that

12  that exhibit be admitted into evidence?

13                MR. NEINAST: Correct.

14                THE COURT: Mr. Dolin?

15                MR. DOLIN: I'm going to object.

16                THE COURT: There's been no testimony about

17  it yet, so ---

18                MR. NEINAST: Can we do it

19  provisionally and I will authenticate it when I

20  come up and do my testimony?

21                THE COURT: We'll not admit it into

22  evidence at this point. You can use it as an

23  exhibit.  

24                MR. NEINAST: We can use it as an


 1  exhibit and then discuss it?

 2                THE COURT: Yes.

 3                MR. NEINAST: Okay. Thank you.

 4  Q             (By Mr. Neinast) Could you please

 5  look at those children on the floor?

 6  A             Yes.

 7  Q             Is there MRSA on that floor?

 8  A             Yes.

 9  Q             Are those children's skin touching

10  the floor? 

11  A             It appears to be, yeah.

12  Q             I mean, it's pretty obvious.

13  A             Uh-huh.

14  Q             So if that child had some sort of

15  cut on their leg, they're exposing themselves to

16  this MRSA and could possibly get an infection?

17  A             Yes.

18  Q             So it appears that the library

19  doesn't really care about children's skin

20  touching the floor as long as it's not a bare

21  foot? 

22                MR. DOLIN: Your Honor, I'm going

23  to object. First of all, there's been no

24  testimony that this is the library. This is


 1  merely a photo. He hasn't testified that he knew

 2  where the photo was taken.

 3  This is boot and suspenders. It's

 4  boot-strapping it in and I object again, Your

 5  Honor.

 6                MR. NEINAST: It's in the

 7  newspaper.

 8                THE COURT: Sustained at this

 9  point.

10                MR. NEINAST: Okay. Okay.

11  Q             (By Mr. Neinast) Getting back to

12  -- getting back to just ---

13                MR. NEINAST: Do you want me to

14  remove this or leave it up?

15                THE COURT: That's up to you.

16                MR. NEINAST: Okay.

17  Q             Getting back to how much of a risk

18  this MRSA is to normal folks. I need a little

19  set-up here just so you understand.

20                February a year ago, my mother

21  broke her ankle; went to Mount Carmel East for

22  surgery; got MRSA in the hospital. I assume it's

23  in the hospital.

24                As a result of that, I went on


 1  various visits to various doctors, one of which

 2  was an orthopedist, one of which was a vascular

 3  surgeon, in my bare feet, and none of those

 4  doctors objected. Were they wrong?

 5                MR. DOLIN: Objection.

 6                THE COURT: And the basis, so the

 7  record is clear, Mr. Dolin?

 8                MR. DOLIN: Objection is that,

 9  first of all, there's no evidence -- there's

10  nothing in the record -- he's asking a question.

11  There's nothing in the record about his mother's

12  incident, about the fact that he went to doctors.

13  There's no testimony about that.

14                Further, he's asking the witness to

15  speculate about what was going on in the doctors'

16  minds and circumstances that, again, for which

17  there's no factual basis in the record.

18                THE COURT: Sustained.

19                MR. NEINAST: I'm trying to figure

20  out how I can testify to get this into the record

21  before talking.

22                Can you give any help on this? I

23  apologize.

24                You can't?


 1                THE COURT: I can't.

 2                MR. NEINAST: Okay.

 3  Q             (By Mr. Neinast) Do you know who

 4  Dr. James Smith is?

 5  A             I don't.

 6  Q             Of the Infectious Disease

 7  Specialists. He's in downtown Columbus on Bryden

 8  Road. 

 9  A             (No verbal response.)

10  Q             Okay. So let me just try to -- try

11  to wrap this up then.

12                Did you present a paper at the

13  International Conference on Healthcare,

14  Associated Infections last March?

15  A             Yes.

16  Q             And what was the paper on?

17  A             I think that you're talking -- I

18  think we had four papers, but I think you're

19  probably talking about the Overuse of Isolation

20  Precautions. 

21  Q             Personal Protective Equipment?

22  A             Right. Yes.

23  Q             Okay. Could you tell me just a bit

24  more about that study?


 1  A             Briefly, we were looking at nurses'

 2  decisions to use personal protective equipment

 3  like gowns and gloves and masks, and under what

 4  circumstances they chose to use that equipment,

 5  and whether that was appropriate based on kind of

 6  our expert opinion.

 7  Q             The situation?

 8  A             Correct.

 9  Q             And your expertise. Okay.

10                In a Medscape article about that

11  paper, it says that gloves were the most overused

12  of the personal protective equipment; is that

13  correct?

14  A             Yes.

15  Q             And in that article, you were

16  quoted as saying: Appropriate use of personal

17  protective equipment is important and reduces the

18  risk of healthcare-associated infections and

19  protects healthcare workers; however, these

20  precautions can also have drawbacks and should

21  only be used when they provide a clear benefit.

22  A             That's correct.

23  Q             Is that a correct quote?

24  A             I believe it's right from that


 1  interview.

 2  Q             Okay. And that quote does reflect

 3  your views in the paper?

 4  A             It does.

 5  Q             Okay. So based on what we've gone

 6  over today, that MRSA is inside shoes, that MRSA

 7  is everywhere, including your bathroom where you s walk in your bare feet, including here, where

 9  everybody touches it with their hands, could it

10  not be said that footwear could also be

11  considered an overused piece of personal

12  protective equipment, can also have drawbacks,

13  and should only be used when it has a clear

14  benefit?

15  A             I would not categorize the

16  requirement to wear footwear in a public place as

17  the same type of overuse that we were describing

18  in our paper. I don't think that that's a fair

19  characterization.

20  Q             I need you to explain more. Why is

21  it not a fair characterization?

22  A             Well, you talk about personal

23  protective equipment, those interventions were

24  developed as a way to protect healthcare workers


 1  and have evolved to include recommendations to

 2  prevent transmission. 

 3                So we have a different set of

 4  drawbacks of use of personal protective equipment

 5  in healthcare settings than we do in the

 6  community. 

 7                So I wouldn't characterize them the

 8  same way. 

 9                MR. NEINAST: Okay. I'm not going

10  to brow beat you to try to get you to say stuff I

11  really want you to say.

12  That would be all for this witness,

13  Your Honor. 

14                THE COURT: Okay. Thank you.

15                MR. DOLIN: I just have a couple of

16  brief questions. 

17                         - - -

18                  REDIRECT EXAMINATION

19  BY MR. DOLIN: 

20  Q             Professor Landers, the MRSA that

21  may be on the soft lining of my shoe or the

22  inside of my shoe, I can't spread that around;

23  correct? 

24  A             Right.


 1  Q             So that is not a community risk;

 2  correct?   

 3  A             Right.  

 4  Q             All right. Now, Mr. Neinast asked

 5  you about MRSA on books and surfaces and the

 6  like. Would you agree that when I walk, I put a

 7  lot more pressure on my heel --- 

 8                MR. NEINAST: Objection. I have an

 9  objection on that.  

10  Q             --- than I put when I touch ---

17  about that issue.

18                MR. NEINAST: I thought I got shot

19  down for some of that, but I may be mistaken.

20                Go ahead. 

21  Q             (By Mr. Dolan) Does one put more

22  pressure on one's feet when walking?

23  Let me ask it this way.

24  A             Okay. 


 1  Q             Do you know about how many times

 2  the body weight is put on your feet when you

 3  walk? 

 4  A             I don't. Several times, but no.

 5  Q             More than a typical touch or

 6  picking up a book; correct?

 7  A             Yes.

 8  Q             Might that have an impact, greater

 9  pressure, on the transmission of MRSA?

10  A             It wouldn't just be pressure. It

11  would be the friction, the shear forces that

12  would be applied as opposed to touching, yes.

13  Q             Right. So the greater the force,

14  would you agree, the more likely it is that the

15  MRSA would be transmitted; correct?

16  A             It would be the degree of force and

17  the type of force.

18                MR. DOLIN: Thank. you.

19                THE COURT: Did you have any other

20  questions?

21                MR. NEINAST: Yes, please. Just

22  following up on that.

23                         - - -



 1                  RECROSS-EXAMINATION


 3  Q             Regarding spreading the MRSA, it's

 4  already ubiquitous. If it's everywhere here, and

 5  somebody picks it up with their feet from here

 6  and puts it over there, it's still there. I

 7  mean, it's not like you're reducing exposure.

 8  The total -- MRSA is conserved; right? I mean,

 9  aside from the fact when they reproduce, it's

10  getting worse. But this bit about spreading it

11  from one location to another location and another

12  location, it's already ubiquitous. It doesn't

13  matter; is that correct?

14  A             The difference would be if here is

15  a private residence and here is a public place.

16  If it goes from here to there, which is what you

17  asked about, going from here to there, then that

18  would be -- that's the difference.

19  Q             So it might change a small local

20  concentration.

21  A             Correct.

22  Q             But it would still be just as much

23  as there before. And there's not so much over

24  there, there's more over here, whatever.


 1  A             It would change the geographic -- I

 2  think you said the geographic concentration,

 3  which would be right here.

 4  Q             Okay. And you talked about greater

 5  force of stepping on something barefoot is more

 6  likely to move it from place -- or transmit it.

 7                First of all, if the greater force

 8  put it on the heel, would it also tend to make it

 9  stay there more so?

10  A             I think that I was talking about---

11  Q             Kind of pressed in.

12  A             --- the type of force that's

13  applied to the tissue.

14  Q             Right.

15  A             And the degree.

16  Q             So that helps pick it up. Would

17  that also help it stay on the foot and not be

18  transmitted at the other end?

19  A             There would be certain kinds of

20  motions that would be more likely to remove it,

21  say, from the surface, right.

22  Q             Scuffing of foot is more likely to

23  remove it, for instance; right?

24                Of course, you don't know anything


 1  about barefoot walking dynamics, so you don't

 2  know whether that happens more often barefooted

 3  or not; correct?

 4  A             No, I do not.

 5  Q             Okay. And then, are there any

 6  studies that support what you just said about

 7  this greater force of skin on a surface, like a

 8  porous surface of them picking this up? Are

 9  there studies that support that?

10  A             Yes.

11                MR. NEINAST: Okay. Thank you.

12                MR. DOLIN: Nothing further.

13                THE COURT: Okay. You may step

14  down. 

15  Is the witness free to leave?

16                MR. DOLIN: Yes, he is.

17  Can I just have a moment alone with

18  him outside? 

19                THE COURT: Yes.

20                MR. DOLIN: Thank you.

21                THE COURT: We're going to take

22  just a brief recess, about five, six, seven

23  minutes. Be back at a quarter 'til.

24                (Proceedings recessed.)


 1                THE COURT: Back on the record.

 2  Mr. Dolin, you may proceed.

 3                MR. DOLIN: Your Honor, I would

 4  call Marilyn Steiner.

 5                (Witness duly sworn.)

 6                         - - -

 7                    MARILYN STEINER

 8  being first duly sworn, testified as follows:

 9                   DIRECT EXAMINATION

10  BY MR. DOLIN: 

11  Q             For the record, Ms. Steiner, please

12  state your first and last name, spelling your

13  last name. 

14  A             Marilyn Steiner, S-t-e-i-n-e-r.

15  Q             All right. And are you a resident

16  of Fairfield County?

17  A             Yes.

18  Q             Okay. And what is your current

19  occupation? 

20  A             I'm currently the Library Director,

21  Fairfield County District Library.

22  Q             And where is that headquartered?

23  A             219 North Broad Street here in

24  downtown Lancaster. 


 1  Q             Is your title Director or Executive

 2  Director? 

 3  A             Library Director.

 4  Q             Library Director? Okay.

 5  How many years have you been at

 6  that position? 

 7  A             Library Director, I took that

 8  position in January, 2006. Was interim for about

 9  six months before that.

10  Q             Okay. So five years,

11  approximately? 

12  A             Approximately.

13  Q             And before that, how many years

14  were you working as a librarian or in the field

15  of library science?

16  A             I started working as a work study

17  librarian in Youngstown in about 1988.

18  Q             All right. And have you worked

19  continuously as a librarian or in library science

20  since then? 

21  A             Yes.

22  Q             All right. So almost -- '88 did

23  you say? 

24  A             '88, uh-huh.


 1  Q             Okay. So over 20 years.

 2  A             Yes.

 3  Q             All right. And can you just

 4  briefly tell us what your educational background

 5  is?

 6  A             I have a bachelor of science degree

 7  in elementary education and a master's in library

 8  science.

 9  Q             And where did you get your master's

10  from? 

11  A             From Kent State University.

12  Q             And what year was that?

13  A             1986, I believe -- I'm sorry,

14  1992.  

15  Q             How many branches -- or how many

16  locations does the Fairfield District Library

17  have? 

18  A             We have a main library and we have

19  four branch locations -- one in Amanda, one in

20  Carroll, one in Baltimore and one in Bremen.

21  Q             And what are your duties and

22  responsibilities as Executive Director -- or

23  Director? Excuse me.

24  A             I oversee the day-to-day operations


 1  of all of the library locations and it's my job

 2  to oversee the policies and procedures set forth

 3  by the Library Board of Trustees.

 4  Q             And are you responsible for the

 5  budget of the library?

 6  A             I have input into the budget of the

 7  library, yes.

 8  Q             Okay. And that's set by the Board?

 9  A             Yes, it is.

10  Q             Okay. How many people report -- or

11  how many people work at the Fairfield County

12  Library? 

13  A             We currently have 53 employees

14  among all of our locations.

15  Q             And approximately how many people

16  use the Fairfield Library each year, how many

17  patrons? 

18  A             Last year, over 500,000 customers

19  used the library locations during the year.

20  Q             And what is the annual budget of

21  the library?

22  A             Last year. it was lust over three

23  million dollars.

24  Q             And is part of your job to use


 1  those funds in as fiscally prudent manner as

 2  possible?

 3  A             Yes.

 4  Q             Okay. And do you report to the

 5  Board? 

 6  A             Yes.

 7  Q             Now, you indicated you have overall

 8  responsibility for the operations of the library;

 9  is that correct? 

10  A             Correct.

11  Q             And again, that concerns fiscal

12  matters as well?

13  A             Correct.

14  Q             And would that include -- do your

15  duties also include issues regarding the health

16  and safety concerns of the users of the library?

17  A             Correct.

18  Q             Is one of your responsibilities to

19  assist in the creation of a safe facility or

20  facilities? 

21  A             Yes.

22  Q             Now, in the past, have you ever

23  requested that a health and safety inspection be

24  conducted at the library?


 1  A             Yes.

 2  Q             And when was that?

 3  A             I believe it was 2007. It was not

 4  too long after I became Library Director. The

 5  fiscal officer and I had gone to a workshop at

 6  the -- put on by the Bureau of Workers'

 7  Compensation and found out then that they would

 8  come and do inspections for us. So we thought it

 9  would be a good idea to have them in and just

10  take a look at -- our main library is what they

11  inspected, just to see if we had any potential

12  liabilities there.

13  Q             Okay. And why did you do that?

14  A             Just, again, to minimize some risk.

15  If we had any liabilities, we thought it would be

16  good to have them come in and look at that, and

17  then we could take care of any possible risks

18  that we had.

19  Q             Okay. Now -- and that was

20  something that you voluntarily undertook;

21  correct?

22  A             Yes.

23  Q             And was that inspection conducted?

24  A             Yes, it was.


 1  Q             So health and safety is a concern

 2  of yours at the library; correct?

 3  A             Absolutely.

 4  Q             And is it a concern only for the

 5  patients -- patrons, or is it a concern also

 6  related to the financial health?

 7  A             Well, absolutely.

 8  Q             Why? Tell us why it impacts the

 9  financial health of the library.

10  A             Well, if somebody were to get hurt

11  in the library, it could potentially create a

12  fiscal responsibility of the library to take care

13  of an accident or something like that.

14  Q             A lawsuit?

15  A             Exactly, whether it's a customer or

16  staff member. 

17  Q             Okay. Does the library have

18  insurance? 

19  A             Yes.

20  Q             Okay. And do insurance premiums go

21  up if there are more incidents?

22  A             Yes.

23  Q             All right. So that would cost the

24  library more; correct?


 1  A             Correct. 

 2  Q             All right. Now -- so would you

 3  agree that one of the ways to protect the fiscal

 4  resources of the library is to minimize or avoid

 5  injury claims? 

 6  A             Yes, absolutely. 

 7  Q             Okay. Now, in the ordinary course

 8  of its operations, does the library use certain

 9  sharp objects? 

10  A             Yes. 

11  Q             Does it use tacks? 

12  A             Yes. 

13  Q             Does it use staples? 

14  A             Yes. 

15  Q             Does it use scissors? 

16  A             Yes. 

17  Q             Does it use blades? 

18  A             Yes. 

19  Q             All right. Any other sharp objects

20  you can think of? 

21  A             Well, our Building Services 

22  Department would use tools, screwdrivers, things

23  like that to --- 

24  Q             Okay. But in terms of small 


 1  objects, all right, do tacks, staples sometimes

 2  fall to the floor?

 3  A             Yes.

 4  Q             Are they always picked up?

 5  A             I would say we certainly could miss

 6  some. It's possible.

 7  Q             All right. Have you -- you're in

 8  the library every day; correct?

 9  A             Uh-huh.

10  Q             So have you, in your time in the

11  library, encountered staples and other sharp

12  objects on the floor of the library?

13  A             Yes.

14  Q             And were one to step on those with

15  a bare foot, in common sense, would that puncture

16  the skin? 

17  Q             It could possibly puncture the

18  skin. 

19  Q             Now, do liquids and other items

20  sometimes spill onto the floor of the library?

21  A             Yes.

22  Q             And is there a procedure or

23  protocol on that?

24  A             It depends on what it is, but yes,


 1  we do -- if it's -- depending on what spills, it

 2  would depend on what we use to clean it up.

 3  Q             Okay. And these items sometimes

 4  stain or leave residue on the floor of the

 5  library?

 6  A             Yes.

 7  Q             Now, over the years, have there

 8  been injuries of patrons at the library?

 9  A             Yes.

10  Q             And has the library adopted rules

11  and regulations for the use of the library to try

12  to minimize those?

13  A             Yes.

14                         - - -

15                Thereupon, Defendant 's Exhibits

16  Nos. 9-A through 9-S were marked for purposes of

17  identification.

18                         - - -

19  Q             I'm going to mark this for

20  identification as 9, Defendant's Exhibit 9.

21                Ms. Steiner, I'm going to ask you

22  to look at what I've marked for identification as

23  Defendant's Exhibit 9. And it consists of 24

24  pages which I've numbered with little numbers and


 1  circles on the lower right-hand side of each

 2  page. And the number of exhibits which we will

 3  call -- they start at A and they go through S, as

 4  in Sam. So we'll call this 9-A through 9-S.

 5  Have you seen Exhibits 9-A through

 6  9-S before?

 7  A             Yes.

 8  Q             And what are these?

 9  A             These are reports of unusual

10  occurrence, things that have happened in the

11  library that stuff is written up an unusual

12  occurrence about.

13  Q             Okay. Basically, are these things

14  about injuries and other occurrences in the

15  library?

16  A             Yes.

17  Q             And as a result of the injuries and

18  other occurrences over the years, some of which

19  are documented in here, have there been

20  conditions where bodily fluids and blood have

21  been spilled or found onto the library floor?

22  A             Yes.

23  Q             And when there is an injury or

24  unusual occurrence, are the library personnel


 1  required to complete this type of report?

 2  A             It depends on the injury. If a

 3  customer gets a paper cut and the staff hands a

 4  band-aid to them, we don't write an incident

 5  report. But typically, if there's any

 6  substantial injury to a customer, we would expect

 7  the staff to fill one of these out.

 8  Q             okay. And would the staff be under

 9  a duty to prepare that?

10  A             Yes.

11  Q             And are these reports made in the

12  ordinary course of the library's business?

13  A             In the ---

14  Q             Well, is this a report that is

15  supposed to be maintained by the library?

16  A             It is, yes.

17  Q             So, again, are these reports made

18  in the ordinary course of the business of the

19  library when these occurrences happen?

20  A             Yes.

21  Q             And is it the ordinary course of

22  the library's business to make and maintain these

23  reports? 

24  A             Yes.


 1  Q             And are you the custodian

 2  ultimately of these reports?

 3  A             Yes.

 4                MR. DOLIN: Your Honor, at this

 5  time, I'm going to offer these into evidence, 9-A

 6  through S. as in Sam.

 7                THE COURT: Mr. Neinast?

 8                MR. NEINAST: That's fine.

 9                THE COURT: Defendant's Exhibits

10  9-A through S are admitted into evidence.

11                         - - -

12                Thereupon, Defendant's Exhibits

13  Nos. 9-A through 9-S were admitted into evidence.

14                         - - -

15  Q             (By Mr. Dolin) You have 9-A

16  through S now. For the purpose of saving time,

17  it appears -- I'll represent to you that these

18  reports start in July of 1999 and go through

19  2011. Does that appear to be the case, Ms.

20  Steiner? 

21  A             Yes, it does.

22  Q             Okay. Now, would you agree --

23  well, let me -- again, to try to move this along.

24  Do these incident reports -- or some of these


 1  incident reports show incidents in which a

 2  library patron has been injured and been bleeding

 3  as a result of injuries on library property?

 4  A             Yes.

 5  Q             And in particular, I draw your

 6  attention to Exhibits A, B, G, J, K and N -- A,

 7  B, G, J, K and N. And do those show instances in

 8  which library patrons were injured and bleeding

 9  in the library?

10  A             Yes.

11  Q             And do some of these reports -- and

12  in particular, I draw your attention to Exhibit

13  G, as in George -- show instances in which there

14  was blood on the floor of the library?

15  A             Yes.

16  Q             All right. And can you tell us

17  what that report in G shows?

18  A             It shows that a customer had fallen

19  outside and was bleeding; came into the library.

20  The staff gave her a band-aid. There was blood

21  on the floor and the counter after she entered

22  the library to get assistance.

23  Q             Okay. And I draw your attention to

24  Exhibit K. Does that show an individual who had


 1  a bloody toe and was treated inside the library?

 2  A             Yes. Yes. It looks like, again,

 3  got hurt outside, came into the library. His toe

 4  was bleeding when he came in. 

 5  Q             And he was treated in the library;

 6  is that correct?  

 7  A             Yes.  

 8  Q             All right. And is that the

 9  procedure for the library staff, to help people

10  in that way?  

11  A             Yes.

12  Q             Now, do some of these instances --

13  do some of these reports show instances in which

14  people urinated either on the floor or on

15  furniture in the library?

16  A             Yes.

17  Q             And in particular, I draw your

18  attention to Exhibit D, as David, and P. Do

19  those show instances in which people either

20  urinated in the library ---

21  A             Yes.

22  Q             And does Exhibit P show that

23  somebody urinated in the elevator?

24  A             Yes.


 1  Q             And does Exhibit D show that

 2  somebody urinated on furniture?

 3  A             Yes.

 4  Q             Do some of these incident reports

 5  show instances when glass broke and fell onto the

 6  floor of the library?

 7  A             Yes.

 8  Q             And in particular, I draw your

 9  attention to Exhibits E and F. Do those two

10  reports show instances in which glass fell onto

11  the library floor and shattered?

12  A             Yes,

13  Q             All right. Now, I assume when

14  glass falls, when objects fall like that, the

15  library attempts to clean it up; correct?

16  A             Correct.

17  Q             Can you be certain that you always

18  pick up all of the shards?

19  A             I would assume that the staff who

20  is cleaning it up would do the best of their

21  ability, but you know what it's like when

22  something breaks. You attempt to get it all,

23  sweep it up, but ---

24  Q             Okay. Now, do some of these


 1  incident reports in Exhibit 9 show instances in

 2  which patrons vomited in the library, including

 3  vomiting on the floor?

 4  A             Yes.

 5  Q             And, in particular, I draw your

 6  attention to Exhibits 0 and Q. Do those show

 7  instances in which patrons vomited in the library

 8  and on the floor?

 9  A             Yes.

10                MR. NEINAST: Your Honor, I'd like

11  to object, but I'm not exactly sure how.

12                There is an interrogatory which has

13  been signed under oath where Ms. Steiner said

14  that there were no -- I asked them to list all

15  hazards to bare feet in the library, and they

16  said that there weren't any.

17                THE COURT: You can ask that on

18  cross-examination.

19                MR. NEINAST: That's what I would

20  cross, not ask this be excluded? Okay. Thank

21  you, Your Honor.

22                THE COURT: Right. Thank you.

23  Q             (By Mr. Dolin) In Exhibit O, Ms.

24  Steiner, does it indicate that there was vomit on


 1  the floor in the library?

 2  A             Yes, it does.

 3  Q             Okay. Do any of these incident

 4  reports show incidents in which a patron spit on

 5  the floor of the library?

 6  A             I believe there's one that does,

 7  yes. 

 8  Q             And I draw your attention to

 9  Exhibit M. And does that show an individual spit

10  chewing tobacco on the floor of the library?

11  A             Yes, it does.

12  Q             Now, have there ever been instances

13  in which toilets from the restrooms have

14  overflowed in the library?

15  A             Yes.

16  Q             And, in particular, I draw your

17  attention to Exhibits L and R. Do those exhibits

18  show circumstances where there was overflowing

19  toilets in the restrooms?

20  A             Yes.

21  Q             And where the areas needed to be

22  mopped up to sop up the water?

23  A             Yes.

24  Q             Okay. Now, in each of the


 1  instances that we've discussed, did library

 2  personnel assist the patrons in matters related

 3  to those incidents?

 4  A             Yes.

 5  Q             And in each of those incidents,

 6  were the library personnel diverted from

 7  attending to their normal duties as librarians?

 8  A             Yes.

 9  Q             Sorting books, checking out books

10  and the like? 

11  A             Correct.

12  Q             Were some of the personnel who

13  attended to the injured patrons paid on an hourly

14  basis? 

15  A             Yes.

16  Q             To the extent that they were

17  assisting patrons with injuries, were they

18  performing the duties for which they were

19  specifically hired?

20  A             No.

21  Q             And did that cost the library their

22  time, their money?

23  A             Sure, absolutely.

24  Q             Now, would it be fair to say that


 1  the library wants to foster a quiet atmosphere?

 2  A             I wouldn't say we're always

 3  successful at that, but yes, as a public library,

 4  I think it is expected that it's a quiet place.

 5  Q             Why?

 6  A             Well, because most of the time when

 7  people are in the library using it, they're using

 8  it to do research, to do reading, to look for

 9  informational things.

10  Q             Okay. Now, to the extent that --

11  in your experience, to the extent that patrons

12  using the library are injured, have you observed

13  that it's distracting to the other patrons?

14  A             Yes.

15  Q             To the extent that patrons are

16  injured, I think you mentioned, it takes up

17  library personnel time; correct?

18  A             Correct.

19  Q             All right. Now, you indicated

20  previously that one of the goals of the library

21  is to create a safe environment; is that right?

22  A             Correct.

23  Q             Or a safer environment.

24  A             Safer, as much as possible.


 1  Q             Has the library adopted rules and

 2  regulations for the safe and orderly use of the

 3  library?

 4  A             We do have a Code of Conduct, yes.

 5  Q             All right. And are these rules

 6  adopted and applicable across all of the library

 7  branches in the Fairfield Library?

 8  A             Yes,

 9                MR. DOLIN: Your Honor, do you have

10  -- I'm looking for Exhibits 1 through 4.

11                THE COURT: They're in here.

12                MR. DOLIN: Thank you.

13  Q             Okay. I'm going to ask you to look

14  at Exhibit 1. And is this the Code of Conduct

15  that was adopted by the Board of Directors of the

16  library in April of 1997?

17  A             That's the date at the top.

18  Q             Okay. Now, were you working at the

19  library at that time?

20  A             I was not.

21  Q             Okay. These were obtained from the

22  regularly maintained records of the library;

23  correct? 

24  A             Correct.


 1  Q             Okay. Now, was that -- I'd ask you

 2  to look at ---

 3                Do the rules adopted in 1997

 4  address only shoes? I see that there is a rule

 5  there that says shirt and shoes are required for

 6  entry to any library facility; correct?

 7  A             Correct.

 8  Q             All right. Is that the only rule

 9  in the Code of Conduct that's in this 1997

10  version, Exhibit 1, that addresses health and

11  safety? 

12  A             No.

13  Q             There are others; correct?

14  A             There are others.

15  Q             Now, after 1997, did the library,

16  I'll say, update or reaffirm its Code of Conduct?

17  A             Yes.

18  Q             And was that done in April of 2007?

19  A             Yes.

20  Q             And that was done before Mr.

21  Neinast was -- before the incident that brought

22  this suit came to light; correct?

23  A             Yes, yes.

24  Q             So those were in place before Mr.


 1  Neinast was told to put shoes on in the library;

 2  correct?

 3  A             Correct. 

 4  Q             Okay. Now, as far as you know,

 5  when the Code of Conduct was enacted in 2007,

 6  that was the one that was applicable to Mr.

 7  Neinast; correct?  

 8  A             Correct. 

 9  Q             And that is depicted -- is it

10  Exhibit 2? I believe it is.

11  A             Yes. 

12                MR. DOLIN: Please bear with me a

13  moment, Your Honor. I'm looking for my exhibit

14  here.  

15                THE COURT: The witness answered

16  the question.  

17                MR. DOLIN: Huh?

18                THE COURT: The witness answered

19  the question.  

20                MR. DOLIN: Yes, I know.

21  Q             (By Mr. Dolin) Now, the Code of

22  Conduct that was in effect at the time Mr.

23  Neinast came in that was adopted in 2007, there

24  was a shoe policy on that; correct?


 1  A             Correct.

 2  Q             And can you read us what that shoe

 3  policy was? 

 4  A             "Shirt and shoes must be worn in

 5  any library facility. If a child has learned to

 6  walk, the child must wear shoes."

 7  Q             Now, was that the only health and

 8  safety regulation contained in the Code of

 9  Conduct? 

10  A             No.

11  Q             There were several others; correct?

12  A             There were several others, yes.

13  Q             All right. And they're set forth

14  in the policy? 

15  A             Correct.

16  Q             All right. Now, I turn your

17  attention to Exhibit No. ---

18  Just so we're clear, Exhibit 2 is

19  the one that was in effect at the time Mr.

20  Neinast came in; correct?

21  A             Correct.

22  Q             All right. I turn your attention

23  to Exhibit 3, which are minutes of the Board of

24  Directors dated January 20th of '09. Okay?


 1  Do you recognize these?

 2  A             Yes,

 3  Q             Okay. And can you tell me,

 4  applicable to our case, how these are relevant?

 5  A             I believe this was where the Board

 6  -- there was brought up in old business: Code of

 7  Conduct as pertains to the dress code --

 8  determination.

 9  Q             I'm sorry. Is this on the fourth

10  page?

11  A             It says page five at the top, but

12  it's the fourth page in, yes.

13  Q             The upper right-hand corner says

14  page five.

15  A             Correct,

16  Q             Okay. And would you just read into

17  the record the business that was conducted by the

18  Board that day.

19  A             As pertaining to the Code of

20  Conduct, as pertains to dress code determination:

21  The Fairfield County Prosecutor, Roy Hart,

22  advised that according to the Ohio Revised Code,

23  the Library Board of Trustees has the right to

24  establish the standards and rules that will be


 1  used by the library. In addition, the Fairfield

 2  County Prosecutor stated that it is the fiscal

 3  responsibility of the library to, as much as

 4  possible, reduce and eliminate any risks which

 5  may potentially produce cost liability.

 6  Q             I think that's "costly" liability.

 7  A             Pardon me. Costly liability, yes.

 8  Q             Continue.

 9  A             After a brief discussion, the

10  Library Board agreed to maintain its current Code

11  of Conduct and asked the Director to write a

12  letter to Mr. Neinast advising him of this

13  decision.

14  Q             Okay. And was such a letter sent

15  out?

16  A             Yes, it was.

17  Q             Okay. And I think Mr. Neinast

18  identified that ---

19                (Off-the-record discussion between

20  Mr. Dolin and Mr. Neinast.)

21                         - - -

22                Thereupon, Defendant's Exhibit No.

23  10 was marked for purposes of identification.

24                         - - -


 1  Q             This is Exhibit, I believe, 10.

 2  I'm showing you what's been marked

 3  as Exhibit No. 10 for identification. And that

 4  appears to be a -- now, this is not an exact

 5  copy, but is this the text of a letter that the

 6  library sent to Mr. Neinast on or about January

 7  21st of '09? 

 8  A             Yes.

 9  Q             Okay. And was this done after that

10  Board Meeting on January 20th of '09?

11  A             It was, yes.

12  Q             Okay. And can you just ---

13                MR. DOLIN: Your Honor, I'm going

14  to ask that this be admitted into evidence.

15  Q             You signed the original; correct?

16  A             I did, yes.

17  Q             Okay. All right.

18                MR. DOLIN: Do you have any

19  objection, Mr. Neinast?

20                MR. NEINAST: No, no objections.

21                THE COURT: Defendant's Exhibit 10

22  is admitted into evidence.

23                MR. DOLIN: Rather than have Ms.

24  Steiner read it in, the Court has it.


 1                         - - -

 2                Thereupon, Defendant's Exhibit No.

 3  10 was admitted into evidence.

 4                         - - -

 5  Q             Okay. So just so we're clear, can

 6  you read -- okay. You did read the current

 7  policy in; correct?

 8  A             Yes.

 9  Q             Shirts and shoes must be worn in

10  any library facility. If a child has learned to

11  walk, the child just wear shoes. Correct?

12  A             Correct.

13  Q             And that was the one in effect when

14  Mr. Neinast came in.

15  A             Correct.

16  Q             Okay. Now, do you know what the

17  reasoning was behind that policy? What was the

18  reason why the Board adopted that policy?

19  A             I'm not -- the whole Code of

20  Conduct or ---

21  Q             I'm sorry. The Code of Conduct,

22  yes, of which that was a part.

23  A             Sure. Just for the safe operations

24  and just set a standard of behavior, again, to


 1  make a comfortable environment for customers in

 2  the library.

 3  Q             Okay. Was it also to try to make a

 4  safer environment?

 5  A             Certainly.

 6  Q             Was one of the Board's concerns

 7  limiting potential lawsuits due to injuries?

 8  A             Certainly.

 9  Q             All right. And was part of that

10  concern from the Board to reduce potential

11  financial ramifications or negative financial

12  ramifications that might result from injuries?

13  A             Certainly.

14  Q             Now, did Mr. Neinast make a request

15  of the library after he got that letter to come

16  in or was it beforehand? Did he make a

17  presentation to the Library Board?

18  A             He did. In October of 2008, he

19  made a presentation at a Board -- I think it was

20  the October 21st Board Meeting.

21  Q             Okay. So it was before -- it was

22  before that 2009 meeting; correct?

23  A             Correct.

24  Q             Okay. And after he made that


 1  presentation in October of 2008, what did the

 2  Board do, if anything, relative to that

 3  presentation?

 4  A             Just relative to that, the Board

 5  asked if I would consult with Roy Hart, who was

 6  the County Prosecutor at the time, just to get

 7  his opinion on what was, you know, the situation

 8  with Mr. Neinast's request of the Board.

 9  Q             Okay. So he came in to the Board

10  in October of '08.

11  A             Uh-huh.

12  Q             And then the Board met in January

13  of '09, and then the letter went out in January

14  of '09; correct?

15  A             Correct.

16  Q             All right. Now, I note on Exhibit

17  4, which is minutes of the February meeting of

18  '09, which occurred a month later -- so there's

19  the January meeting that we just discussed and

20  then there's a February meeting, which is Exhibit

21  4. All right? And in that February meeting,

22  there's, again, action taken by the Board in

23  connection with the Code of Conduct, and

24  specifically in connection with the requirement


 1  of the Code of Conduct that shoes be worn;

 2  correct?

 3  A             Correct. 

 4  Q             All right. And that appears, it

 5  looks like, on the third page; is that right?

 6  A             Yeah. It says page 14 at the top.

 7  Q             Right. 

 8  A             It's the third page in.

 9  Q             Okay. And what was that action

10  that was taken? 

11  A             Do you want me to read what it

12  says:

13  Q             Go ahead.

14  A             "Be it resolved, upon motion by

15  Mary Davis, seconded by Peter Vandervoort, that

16  the Library Board of Trustees has reviewed its

17  Code of Conduct policy and upholds and supports

18  its dress code policy requiring that shirts and

19  shoes be worn in all Fairfield County District

20  Library facilities."

21                And then there was a roll call,

22  roll call vote where everyone voted "aye." And

23  then the President declared the motion adopted.

24  Q             Okay. Now, can you tell me why, if


 1  the Board had addressed this in January, it

 2  addressed it again in February of '09?

 3  A             I believe I received an email from

 4  Mr. Neinast and he asked what the vote was on

 5  that. And since we hadn't taken a vote, the

 6  Board was more than amenable to go ahead doing

 7  that at the next Board Meeting and taking an

 8  official vote in regard to the Code of Conduct.

 9  Q             Okay. So would it be fair to say

10  that the February meeting formalized,

11  essentially ---

12  A             It did, yes.

13  Q             --- the consensus that was in the

14  January meeting?

15  A             Correct.

16  Q             Okay. So would you agree that one

17  of the reasons the Code of Conduct was enacted

18  was to make the library safer?

19  A             Yes.

20  Q             And would you agree that one of the

21  reasons requiring shoes was for health and safety

22  of patrons?

23  A             Yes.

24  Q             To stop feet from being punctured?


 1  A             Certainly. 

 2  Q             To stop germs from being spread?

 3  A             Sure. 

 4  Q             Would you agree that one of the

 5  reasons for the rule requiring shoes was to limit

 6  the library's liability for potential injury

 7  claims? 

 8  A             Definitely. 

 9  Q             Would you agree that one of the

10  reasons was to avoid using staff time to attend

11  to injuries as opposed to more conventional 

12  library functions? 

13  A             Sure. 

14  Q             Would you agree that the rules were

15  enacted, and the rule in effect at the time of

16  the incident that we're addressing here, was to

17  limit potential claims and assist the library in

18  reducing injuries to patrons? 

19  A             Yes. 

20  Q             And would you also agree that part

21  of the reason was to keep insurance premiums --

22  or rather, not have them increase as a result of

23  increased incidents? 

24  A             Yes. 


 1  Q             And would you agree that one of the

 2  reasons that the Code of Conduct was enacted was

 3  to avoid diversion of staff time and salary that

 4  the staff would be paid for those non-library

 5  activities?  

 6  A             Certainly. 

 7                MR. DOLIN: I have no further

 8  questions at this time, Your Honor.

 9                THE COURT: Okay. Mr. Neinast?

10                         - - -

11                   CROSS-EXAMINATION


13  Q             Good morning.

14  So, let's see, you got your BS in

15  elementary education in 1986; is that correct?

16  A             I believe that's correct, yes.

17  Q             And any particular field of that,

18  grade levels or what?

19  A             It was just elemenatary education

20  was the degree.

21  Q             Just elementary education? Did you

22  do any switching before you switched to library?

23  A             I substituted -- I just did

24  substitute teaching in the Youngstown area for a


 1  couple of years.

 2  Q             Okay. And then you got your MLS in

 3  1991 from Kent State.

 4  A             Was it '91? Okay.

 5  Q             That's what's on your web page.

 6  A             I'm sure that's true.

 7  Q             I'm not trying to impeach you yet.

 8  In getting your MLS, did they have

 9  courses in library management?

10  A             Yes.

11  Q             Okay. Did it include what sort of

12  things ought to be banned in libraries?

13  A             You know what, I honestly don't

14  recall.

15  Q             Okay. Have you had any courses as

16  far as continuing education, whatever, in risk

17  evaluation and management? 

18  A             Let me think about that. Other

19  than what we've done through -- that I was

20  referring to earlier, Workers' Comp, I don't

21  believe that -- I can't recall anything that I've

22  taken specifically. 

23  Q             Okay. I'm going to jump from what

24  I planned originally. 


 1  Regarding that thing, the health

 2  and safety inspection, that you guys had done in

 3  2007, I don't think I heard anybody ask, what

 4  were the results of that inspection?

 5  A             I just briefly looked at it the

 6  other day. There were maybe 10 or 12 things on

 7  there that were noted that needed to be

 8  addressed.

 9  Q             Major, minor, what sort of stuff?

10  A             That depends on what you consider

11  major. There were like switch plates, electrical

12  switch plates that were missing or needed

13  replaced. There was some mold in a closet that

14  needed to be torn out and taken care of; ladders

15  that needed replaced, things like that.

16  Q             Okay. Let's see. So you basically

17  didn't have -- really don't have training about

18  addressing barefooted patrons in specific?

19  A             No.

20  Q             Okay. Then how did you folks go

21  about determining that a shoe rule was part of

22  the proper operation in the management of the

23  library, since -- if there's risks that need to

24  be balanced, part of risk evaluation, whatever,


 1  how did you guys decide that this was one of the

 2  safety rules that needed to be part of your Code

 3  of Conduct?

 4  A             To the best of my recollection,

 5  when the Code of Conduct -- I wasn't here in

 6  1997. In 2007, you know, it was -- I don't think

 7  there was any specific discussion in regard to

 8  that.

 9  Q             Okay.

10                MR. NEINAST: Your Honor, I have

11  here a copy of the library By-Laws that were

12  adopted on April 20th, 2010, in whatever meeting

13  they were having at that time.

14                THE COURT: Do you have that

15  labeled as an exhibit?

16                MR. NEINAST: Yes. This is Exhibit

17  1.

18                THE COURT: Plaintiff's Exhibit 1.

19                MR. NEINAST: Plaintiff's Exhibit

20  1.

21                         - - -

22                Thereupon, Plaintiff's Exhibit No.

23  1 was marked for purposes of identification.

24                         - - -


 1  Q             Would you tell us what this exhibit

 2  is, please? 

 3  A             This appears to be a copy of the

 4  by-laws of the Board of Trustees of the library.

 5  Q             Okay. And you did send this to me

 6  or had one of your staff send it to me? There's

 7  an email in which I asked for all of the meeting

 8  minutes from around 2009 until the present time.

 9  A             Okay. I recall that, yes.

10  Q             And this is a copy of what you sent

11  to me; is that correct?

12  A             Sure. It appears to be, yes.

13                MR. NEINAST: So, Your Honor, I ask

14  that this be admitted into evidence.

15                THE COURT: Any objection?

16                MR. DOLIN: No objection.

17                THE COURT: Okay. Plaintiff's

18  Exhibit 1 is admitted into evidence without

19  objection. 

20                         - - -

21                Thereupon, Plaintiff's Exhibit No.

22  1 was admitted into evidence.

23                         - - -

24  Q             I would just like to go through the


 1  by-laws to see if you guys have actually

 2  authorized yourself to make a footwear rule in

 3  the first place. That's what I'm going to do

 4  here.

 5  Could you please read for me

 6  section one, the mission statement?

 7  A             Section two?

 8  Q             I'm sorry. Did I write down here

 9  section ---

10  A             It's section two.

11  Q             Section two. I'm sorry.

12  A             Sure. "The Fairfield County

13  District Library shall be a center for lifelong

14  choices of reading, entertainment and

15  informational materials with an emphasis on

16  excellence in: Knowledge technologies, free and

17  accessible resources, and customer service."

18  Q             Okay. So does excluding barefooted

19  patrons to the library increase or decrease

20  customer service?

21  A             I ---

22  Q             It basically has nothing to do with

23  customer service; correct?

24  A             I can't say that it does or


 1  doesn't. It doesn't appear to.

 2  Q             Okay. It doesn't have anything to

 3  do with your mission statement then.

 4  Okay. Let's go on.

 5  Under "Our Commitments," could you

 6  read the introductory and then the third bullet?

 7  A             "We are committed to providing the

 8  highest quality of customer service to all

 9  citizens through..."

10  And the third bullet is,

11  "Accessible, comfortable and secure environment."

12  Q             If you exclude somebody because you

13  don't like how they are dressed, does that make

14  things accessible?

15  A             It wouldn't, no.

16  Q             If you exclude somebody who is more

17  comfortable dressed in a way you do not think he

18  should be dressed, does that make things more

19  comfortable for that patron?

20  A             I guess, in answer to your

21  question, I don't typically look at -- judge

22  people on the way they're dressed necessarily,

23  but no.

24  Q             But if you're forcing me to wear


 1  something I don't -- I'm not comfortable wearing,

 2  basically, you are not satisfying your commitment

 3  when you do so.

 4                MR. DOLIN: I'm going to object. I

 5  don't think that's ---

 6                THE COURT: Overruled. Go ahead.

 7  A             Would you ask -- what was your

 8  question again? 

 9  Q             Basically, if you're excluding

10  somebody who'd be more comfortable dressed

11  another way that, let's assume for the moment, is

12  non-disruptive, are you satisfying your

13  commitment to being a comfortable environment?

14  A             If you're saying, it would be non-

15  disruptive -- and I guess it would depend on the

16  definition of secure environment here. Is it

17  protecting the customer or protecting the library

18  too. So it just depends on the definition there.

19  Q             Okay. I'd like to go into the

20  policy section now.

21  Could you read through point six?

22                MR. DOLIN: We're still on Exhibit

23  1?

24                MR. NEINAST: Sorry. We're still


 1  on Exhibit 1. We're at the bottom of the first

 2  page where it says "Policies."

 3                MR. DOLIN: Okay.

 4  Q             `The Board of Trustees shall have

 5  all the powers granted to it by law and shall, in

 6  open meetings, determine and establish, in

 7  accordance with law, the basic policies of the

 8  library with respect to: The appropriation and

 9  budgeting of funds; the establishment and

10  maintenance of libraries and library services;

11  the acquisition, improvement, maintenance,

12  insurance, use and disposition of properties; the

13  hiring, compensation and responsibilities of, and

14  the personnel practices concerning, librarians

15  and other employees; the selection, collection,

16  lending and disposition of books and other

17  library materials; and the acceptance of gifts."

18  Q             What part of that authorizes a shoe

19  rule, your shoe policy?

20  A             I would say if I was going to -- I

21  think number two would do that, the establishment

22  and maintenance of libraries and library

23  services. I would think a Code of Conduct would

24  come under that.


 1  Q             How does that establish a library

 2  or even maintain a library? Isn't establishing,

 3  in the normal use of the English language,

 4  creating your buildings and putting them there?

 5  Establishing library services ---

 6  A             I guess if you're asking my

 7  opinion, that's where I think a Code of Conduct

 8  would come under is maintaining library services.

 9  If we're looking at the entire code

10  of conduct for creating an environment ---

11  Q             It seems a bit of a stretch to me.

12  It's not to you?

13  A             You asked for my opinion. That's

14  my opinion.

15  Q             Okay. So you're pretty doubtful

16  about this, though, it sounds.

17  A             I'm not doubtful. I was giving you

18  my opinion and that's my opinion.

19  Q             That the maintenance of library

20  services. In what way is excluding somebody a

21  service -- I mean, isn't -- maintenance of a

22  library service is keeping up your computer

23  systems, making sure you're acquiring books. How

24  would that be --- 


 1  A             I think the service that I see the

 2  library having to the public, though, is

 3  maintaining an atmosphere where everyone feels

 4  that they're welcome and they want to come in.

 5  So if, in doing the Code of

 6  Conduct--- 

 7  Q             Right. But we already know that

 8  I'm not feeling welcome because folks don't like

 9  the way I'm dressed.

10                MR. DOLIN: I'm going to object to

11  that. It's a statement, not a question.

12                MR. NEINAST: I'll go on.

13                THE COURT: Ask it in question

14  form. 

15                         - - -

16                Thereupon, Plaintiff's Exhibit No.

17  2 was marked for purposes of identification.

18                         - - -

19                MR. NEINAST: This is a copy of the

20  letter that was sent from Ms. Steiner to me on

21  June 19th, 2008. Counsel already has a copy of

22  it. That's Exhibit No. 2.

23  Q             Do you recall this letter being

24  sent to you -- sent to me by you?


 1  A             I'm sure it was. I have a vague

 2  recollection, yes.

 3  Q             Do you recognize your signature

 4  there at the bottom?

 5  A             Sure, absolutely.

 6                MR. NEINAST: Your Honor, I'd like

 7  to have this admitted as Exhibit 2.

 8                THE COURT: Any objection?

 9                MR. DOLIN: No, Your Honor.

10                THE COURT: Plaintiff's Exhibit 2

11  is admitted into evidence without objection.

12                         - - -

13                Thereupon, Plaintiff's Exhibit No.

14  2 was admitted into evidence.

15                         - - -

16  Q             What I'd like to try to do, more or

17  less, is review the history, just so everybody

18  knows how this all occurred. It kind of came out

19  piecemeal earlier and I just kind of want to

20  review it in a little better detail so we all

21  understand it.

22                So after I was asked to leave the

23  library on April 24th, 2008, we exchanged a few

24  letters and you presented my issue to the Board


 1  at their meeting on May 20th; is that correct---

 2  A             Correct.

 3  Q             --- within your recollection?

 4  A             Correct.

 5  Q             And at that point, they decided not

 6  to change the policy.

 7  A             Correct.

 8  Q             And then here on Exhibit 2, this is

 9  the letter you sent to me telling me why the

10  Board was keeping that policy. Okay?

11                Could you please read that reason

12  to me? And I've marked that with that little red

13  arrow, that last sentence.

14  A             Do you want me to read the last

15  sentence? 

16  Q             Just the last sentence of the first

17  paragraph is fine.

18  A             "The Board of Trustees upheld its

19  current Code of Conduct based on what the Board

20  feels is the proper decorum for our

21  organization." 

22  Q             So, at that time, that was your

23  reason. That was the reason for the Board to

24  maintain their policy.


 1  A             At that point in time, that was the

 2  discussion that the Board had, yes.

 3  Q             So any reason given later would be

 4  a change from this original and presumably more

 5  real reason?

 6  A             Well -- and I would say -- and

 7  this, honestly, is to the best of my

 8  recollection. There was discussion, not long

 9  discussion, at the Board Meeting about this. And

10  obviously, there were other issues. But the

11  Board just felt strongly that the main issue at

12  that point in time was, they felt the Code of

13  Conduct was -- you know, the decorum was the

14  issue.

15  Q             So the decorum was what they were

16  majorly concerned about? 

17  A             At that point in time, that was one

18  of the major factors, yes. 

19  Q             Okay. So nobody thought about MRSA

20  at this point? 

21  A             There was no discussion at that

22  point in time about MRSA, no. 

23  Q             or anything else like that. Okay.

24  Then after that, you and I


 1  exchanged several letters and then we started

 2  going email, which made things a little easier.

 3  And eventually, as a result of that, I did a

 4  presentation to the Board on October 21st;

 5  correct? 

 6  A             Correct.

 7  Q             Was I wearing any footwear for

 8  that? 

 9  A             Yes, you were.

10  Q             What was I wearing?

11  A             I believe you had flip-flops of a

12  certain --- 

13  Q             Right. You could see my foot,

14  though. 

15  A             Yes.

16  Q             Okay. Would you have seen any more

17  of my foot if I had been barefoot?

18  A             It's hard to tell. Depending on if

19  you had long pants, short -- you know, I don't

20  know. 

21  Q             Okay.

22  A             Not much ---

23  Q             But pretty much. I mean, not much

24  more. Maybe some straps and ---


 1  A             Right.

 2  Q             Okay. There's nothing offensive

 3  about what the straps were covering or anything;

 4  right? 

 5  A             Not to me, no.

 6  Q             Not to you and probably -- okay.

 7  Was the decorum of the meeting

 8  impacted in any way by the sight of my foot?

 9  A             I don't believe -- it wasn't to me,

10  no. 

11  Q             Okay. I mean, this kind of sight,

12  none of the Board members jumped up and screamed

13  about, "Ah, violation of decorum"; correct?

14  A             No.

15                MR. NEINAST: Okay. Let me go on

16  to try Exhibit 3.

17                Okay. Your Honor, what I have here

18  is the set of meeting minutes from the October

19  21st meeting. This is the meeting in which ---

20                THE COURT: And what's that number?

21                MR. NEINAST: This is No. 3.

22                THE COURT: Mr. Dolin, do you have

23  that one? 

24                Any objection?


 1                MR. DOLIN: No.

 2                THE COURT: Okay. Plaintiff's

 3  Exhibit 3 --- 

 4                Are you asking for it to be

 5  admitted? 

 6                MR. NEINAST: Yes, I am.

 7                THE COURT: Okay. Plaintiff's

 8  Exhibit 3 is admitted into evidence without

 9  objection. 

10                         - - -

11                Thereupon, Plaintiff's Exhibit No.

12  3 was marked for purposes of identification and

13  admitted into evidence.

14                         - - -

15  Q             Go to page three. I'd just like

16  you to read the meeting minutes for this meeting.

17  A             You mean, under old business, is

18  that where you're referring to?

19  Q             Where it says: "Old Business, Code

20  of Conduct as it Pertains to Dress Code," yes.

21  A             "The Board of Trustees discussed

22  the recommendation of Mr. Neinast to remove the

23  part of the Code of Conduct policy requiring

24  customers to wear shoes. Board members expressed


 1  their concerns over this recommendation. The

 2  Board concluded that they would like to look at

 3  the situation further and has asked Ms. Steiner

 4  to contact Roy Hart, Assistant Prosecuting

 5  Attorney, to discuss this matter before a

 6  response is made to Mr. Neinast. The Board also

 7  asked Ms. Steiner to send Mr. Neinast a letter

 8  thanking him for his presentation and telling him

 9  that his recommendation is being taken under

10  advisement and that they will inform him of their

11  decision." 

12  Q             Okay. So what were the Board's

13  concerns over my recommendation to remove the

14  shoe rule that they decided they wanted you to

15  talk to Mr. Hart? 

16  A             I guess, to the best of my

17  recollection, there were issues of liability.

18  Q             Okay. If there were issues of

19  liability, why wasn't that put into the meeting

20  notes? 

21  A             The minutes of the meeting notes,

22  it was -- honestly, I don't remember entirely the

23  entire discussion, but those are just the minutes

24  of the meeting. 


 1  Q             Okay. So you were asked to consult

 2  with Mr. Hart in terms of, you're saying,

 3  liability, is the best of your recollection?

 4  A             At that point in time, sure.

 5  Q             Okay. So that's what you were

 6  supposed to find out.

 7                Was it the case that the Board was

 8  just looking for some excuse, any excuse, to keep

 9  the shoe rule? Find out what Mr. Hart might say

10  that will allow you to keep the shoe rule for

11  decorum's sake, for instance?

12  A             I wouldn't say they were looking

13  for any excuse. 

14  Q             Okay. Did you give your own

15  personal recommendation to the Board?

16  A             Did I give my own personal

17  recommendation to the Board?

18  Q             Right. As to what they should do

19  with the shoe rule after my presentation, to keep

20  it or to remove it.

21  A             You know what, it's Board policy,

22  so honestly, I don't believe I ever gave my

23  opinion one way or the other.

24  Q             Actually, I'm just curious. Is


 1  that how things normally work?

 2  A             It's Board policy.

 3  Q             Okay.

 4  A             I make recommendations on new

 5  policy or whatever, but Board policy is a

 6  discussion for the Board.

 7  Q             Okay. Let's see. Let me look at

 8  the next one. So the next thing that happened is

 9  the November 18th meeting.

10                So this is the meeting minutes from

11  the November 18th meeting. That's the one right

12  after the --- 

13                MR. DOLIN: Which number is it?

14                MR. NEINAST: This is No. 4.

15  So, Your Honor, here's No. 4.

16                THE COURT: Are you asking that

17  that be --- 

18                MR. NEINAST: And once again ---

19                THE COURT: Just a minute.

20                MR. DOLIN: No objection.

21                THE COURT: Okay. Plaintiff's

22  Exhibit 4 is admitted into evidence without

23  objection. 



 1                         - - -

 2                Thereupon, Plaintiff's Exhibit No.

 3  4 was marked for purposes of identification and

 4  admitted into evidence.

 5                         - - -

 6  Q             (By Mr. Neinast) Is there an arrow

 7  there on some page -- oh, here it is. It's on

 8  the third page at the very bottom.

 9                Could you read that, just the

10  paragraph under "Code of Conduct as Pertains to

11  Dress Code"?

12  A             Sure. "The Library Director

13  reported that she had a conversation with legal

14  counsel, Roy Hart, regarding the request of Mr.

15  Neinast requesting a change to the library's

16  dress code to exclude the wearing of shoes in the

17  library. Mr. Hart would like to take more time

18  to review the decision as pertains to the case of

19  Neinast versus Columbus Metropolitan Library.

20  Mr. Hart believes that it makes sense that safety

21  would be a legitimate concern. The Board will

22  wait for a recommendation from legal counsel and

23  Ms. Steiner will advise Mr. Neinast should he

24  inquire about a decision."


 1  Q             Okay. So, at this point, you guys

 2  don't even know if there is a legitimate safety

 3  concern; correct? And the only reason you

 4  thought of it was because of my previous lawsuit?

 5  A             I can't say that that's a correct

 6  statement.

 7  Q             What would be correct as to what

 8  happened with this then?

 9  A             You just asked if there was ever a

10  safety concern. And I would just say that

11  there's -- you know, that would be something that

12  was thought about as any sort of issues have

13  been.

14  Q             Okay. So this said it was safety,

15  not a liability, which you'd said earlier, I

16  think. Is that correct?

17  A             I don't see a difference between

18  the two things.

19  Q             You see safety and liability the

20  same?

21  A             Sure.

22  Q             Okay. I don't see decorum in this

23  anywhere. So, at this point, have you folks

24  abandoned decorum? What's the -- what's going on


 1  with that?

 2  A             Again, these were just minutes of

 3  the meeting.   

 4  Q             Okay. Was decorum still an issue,

 5  then, at this point?  

 6  A             I would say that upholding the Code

 7  of Conduct -- yes, I would say, lots of issues

 8  pertaining to this.  

 9  Q             And was this the first time that

10  you or the Board had heard of my previous

11  lawsuit?   

12                You probably can't say for the

13  Board, so I'll just ask you: Was this the first

14  that you had heard of my previous lawsuit from

15  Mr. Hart? 

16  A             I believe -- no, I don't believe it

17  is the first time, because I believe when this

18  first happened at the library, I had had a

19  recollection of this as something that had

20  happened at Columbus Metropolitan Library.

21  Q             It was in the back of your mind.

22  A             Yes.

23  Q             Okay. Okay.

24                MR. NEINAST: Your Honor, this is a


 1  copy of the Defendant's amended responses to the

 2  Plaintiff's first set of interrogatories and

 3  request for production of documents. It's No. 6.

 4  I'd like to have this admitted if

 5  opposing counsel --- 

 6                THE COURT: Any objection?

 7                MR. DOLIN: No, Your Honor.

 8                THE COURT: Plaintiff's Exhibit 6

 9  is admitted into evidence without objection.

10                         - - -

11                Thereupon, Plaintiff's Exhibit No.

12  6 was marked for purposes of identification and

13  admitted into evidence. 

14                         - - -

15  Q             So could you please read -- let's

16  see.  

17                MR. DOLIN: Did we skip 5?

18                THE COURT: We did.

19                MR. NEINAST: Yes. I decided to

20  skip 5.  

21                MR. DOLIN: Okay.

22                MR. NEINAST: It's an email and

23  it's like -- it just went on and on about the

24  same stuff.  


 1                MR. DOLIN: I just wanted to make

 2  sure I was in sequence.

 3                MR. NEINAST: Yeah. Coming in

 4  here, I wasn't sure whether to label something --

 5  number it in advance or not.

 6  Q             (By Mr. Neinast) Let's see. We're

 7  going to read Interrogatory No. 3 at the bottom

 8  of page two and top.

 9                So would you read the interrogatory

10  and its response, please?

11  A             "After Mr. Neinast gave a

12  presentation to the Board in October regarding

13  the shoe rule addressing both decorum and safety,

14  in a December 1, 2008 email from him, Ms. Steiner

15  stated that - --"

16  Q             To him.

17  A             Pardon me. "...in a December 1st,

18  2008 email to him, Ms. Steiner stated that the

19  Board now had safety concerns. Is it the case

20  that the Board's concern after Neinast's

21  presentation changed to safety issues?"

22  Q             And the response?

23  A             I'm sorry. The response was, "No."

24  Q             Okay. So, at this point, there was


 1  no change -- there had not been a chance to

 2  safety issues. It was still just all decorum?

 3  A             The major response -- answer to

 4  that is yes. The major concern was decorum, yes.

 5  Q             Okay. So could you then go back

 6  and read Interrogatory No. 2 and its response?

 7  A             "In her June 19, 2008 letter to Mr.

 8  Neinast, Library Director Marilyn Steiner stated

 9  that at the May 20, 2009 Board Meeting, the shoe

10  policy was upheld to provide for the proper

11  decorum for our organization. Is proper decorum

12  the reason that the Board upheld the shoe policy

13  at that meeting?"

14  "Yes.,,

15  Q             Okay. So in your report on the

16  meeting, the only reason was decorum. Okay.

17  That is the reason. And you also, in

18  Interrogatory 3, say that safety was not -- there

19  was not a safety concern.

20  A             The answer was no.

21  Q             The answer was no, there was not a

22  safety concern at that point. Okay.

23                MR. NEINAST: I'm sorry for the

24  delay, Your Honor. This is really new to me.


 1  Q             Could you describe the discrepancy

 2  for me in that, here you're saying, no, safety is

 3  not a concern, that you folks did go to Mr. Hart;

 4  and you're saying that the reason you went to Mr.

 5  Hart was because you were concerned about safety?

 6                MR. DOLIN: Your Honor, I guess I

 7  have a little bit of objection. If you look at

 8  -- not a little bit. I have an objection to --

 9  Interrogatory No. 3 asks: Is it the case that

10  the Board's concern after Neinast's presentation

11  changed to safety issues? The answer was no.

12                The emphasis could have been on the

13  word "changed" as opposed to "safety."

14                I don't think that's been explored

15  and I think the record is somewhat confused on

16  that point.

17                THE COURT: Well, okay. You can

18  redirect if you want to. 

19                MR. DOLIN: Okay. That's fine.

20                THE COURT: So overruled.

21  Q             So, actually, as I try to think

22  about this, so basically, you folks were kind of

23  playing word games when you answered that

24  particular Interrogatory No. 3.


 1                MR. DOLIN: I'm going to object to

 2  the characterization.

 3                THE COURT: Overruled. Go ahead.

 4                MR. NEINAST: Overruled? Okay.

 5  Q             But so it seems to me from what I'm

 6  reading here is you folks really did not have

 7  safety concerns until you heard back from Mr.

 8  Hart; is that true?

 9  A             To the best of my recollection, if

10  you want the honest answer with this, I believe,

11  you know, safety was always -- you know, there

12  was always some discussion about safety in any

13  piece to this. And the honest truth to that is,

14  in those discussions, the library felt it would

15  cost us more at a time when the budget is -- you

16  know, it's up in the air right now what the

17  budget is going to be for the library. If we had

18  to prove a safety reason, you know, that was

19  going to cost us money. So not that safety was

20  not of concern, because it certainly was, but we

21  were looking at moving forward on this, trying to

22  keep as low a cost to the library as possible in

23  having this ---

24  Q             Okay. Even I lose track of the


 1  time as to what happened here.

 2                But you agree that the talk that I

 3  gave did mention safety and why safety was not a

 4  concern? And you do recall that?

 5  A             I do recall you bringing that ---

 6  Q             Even though originally, you told me

 7  it was decorum, and I prepared a talk on decorum,

 8  I still included a little bit on safety just to

 9  try to include that.

10  A             And, again, that was part of the

11  reason for the response in this is because that

12  was what we had been discussing with -- you know,

13  with the interactions that I had with you.

14  Q             Okay. Now, let's go to the January

15  20th meeting.

16                MR. NEINAST: This is already

17  Defendant's exhibit something or other, I think.

18                Yeah, that's Defendant's Exhibit

19  No. 3. So let me just use that.

20                You don't have a copy of that, do

21  you?

22                Is it okay if I just make my own

23  Exhibit 7?

24                THE COURT: I'll tell you what, you


 1  can use this.

 2                MR. NEINAST: I'll use the one that

 3  you gave me and then I can read from the one I

 4  have.   

 5                MR. DOLIN: I'm sorry. Which---

 6                MR. NEINAST: No. 3, that's

 7  correct.   

 8                MR. DOLIN: Which exhibit are we

 9  looking at now?  

10                MR. NEINAST: No. 3.

11                MR. DOLIN: The minutes of October

12  21?   

13                MR. NEINAST: The minutes of

14  January 20th, 2009.  

15                MS. STEINER: I do have those.

16                THE COURT: Do you have those, Mr.

17  Dolin?   

18                MR. DOLIN: Oh, you're talking

19  about Plaintiff's -- Defendant's ---

20                MR. NEINAST: Defendant's No. 3,

21  yes.   

22                THE COURT: It may be laying up

23  there. It's right there. 

24                MR. NEINAST: She's got hers.


 1                MR. DOLIN: Yeah, that's fine.

 2                MR. NEINAST: Do you need a copy

 3  yourself or you can look at my Plaintiff's 7.

 4                MR. DOLIN: That's fine.

 5  Q             (By Mr. Neinast) You already read

 6  it into the record, if I remember correctly.

 7  A             I believe so.

 8  Q             Saying that Roy Hart had advised

 9  you that you had the right to establish rules and

10  regulations. And then you went on and said that

11  -- the notes went on and said that the Prosecutor

12  stated it's the fiscal responsibility of the

13  library. Okay? 

14                So, first of all, the first

15  sentence -- let me get this straight. The main

16  reason is that the library can set any standard

17  to the rules as they feel like? That's what the

18  first statement says; is that correct?

19  A             The Ohio Revised Code gives the

20  Library Board the right to establish reasonable

21  rules and standards, yes.

22  Q             It doesn't say reasonable rules and

23  standards. It just says standards and rules.

24  A             I'm sorry. I'm just -- the Ohio


 1  Revised Code, whatever the statement is, it is in

 2  the ORC.   

 3  Q             Okay. Did Mr. Hart tell you 

 4  whether there were any sorts of limitations at

 5  all upon these standards and rules?  

 6  A             I don't recall.  

 7  Q             Okay, But if you folks made a rule

 8  that everybody in the library had to, let's say,

 9  wear a purple hat, do you think that would be the

10  outlet?   

11                MR. DOLIN: Objection.

12                MR. NEINAST: Speculation, yes.

13  Q             When you need to make a rule, how

14  do you tell what kind of rule you're allowed to

15  make versus what kind of rule you're not allowed

16  to make? 

17  A             (No verbal response.)

18  Q             I mean, if you were contemplating

19  make a purple hat rule or contemplating making a

20  rule to exclude high heels, because you decided

21  high heels were -- would give you bunions or high

22  heels might let folks trip over imperfections in

23  the carpet, how do you decide -- how does the

24  Board, how does the library, how do they decide


 1  what kind of rules are proper rules and what kind

 2  of rules are improper rules?

 3  A             I guess it depends on what we're

 4  making a policy about or a rule about, what kind

 5  of investigation or what kind of thought process

 6  would go into it. It would vary depending upon

 7  what it was.

 8  Q             Okay. From these meeting minutes,

 9  the primary reason is because you can make rules.

10  And then the "in addition" reason is for the

11  fiscal responsibility of the library; is that

12  correct?

13  A             If that's your -- if that's, you

14  know, what it says.

15                MR. NEINAST: Okay. Let me go on

16  to my next one.

17                Your Honor, this is Defendant's

18  responses to Plaintiff's second set of

19  interrogatories. Defense counsel has a copy.

20                MR. DOLIN: What number is it?

21                MR. NEINAST: No. 8.

22                THE COURT: Any objection, Mr.

23  Dolin?

24                MR. DOLIN: No, Your Honor.


 1                THE COURT: Plaintiff's Exhibit 8

 2  is admitted into evidence without objection.

 3                         - - -

 4                Thereupon, Plaintiff's Exhibit No.

 5  8 was marked for purposes of identification and

 6  admitted into evidence.

 7                         - - -

 8  Q             (By Mr. Neinast) Could you please

 9  read Interrogatory No. 20 and its response?

10  A             At the bottom of the first page?

11  Q             At the bottom of the first page.

12  A             "Based upon the discussions of the

13  Board at their January, 2009 and February, 2009

14  meetings, what was the specific reason or reasons

15  that the footwear policy was upheld and supported

16  by the vote in the February meeting?"

17                "Discussion involved the major

18  reason that the Board has the authority to

19  promulgate rules for the proper operation and

20  management of the library, which includes the

21  creation and enforcement of a dress code.

22  Discussion involved the minor reason that the

23  Board wishes to reduce the risk of injury to

24  patrons, which has the major effect of


 1  maintaining fiscal responsibility, which leads

 2  to upholding a dress code policy that, among

 3  other things, requires patrons to wear shoes."

 4  Q             So, at this point, decorum, that

 5  is, a dress code, is the number one major reason.

 6  And the idea of fiscal responsibility was a

 7  distant second? 

 8  A             That's what it says.

 9  Q             And this was -- you signed this

10  under oath; correct?

11  A             Yes. Correct.

12  Q             Okay.

13                MR. NEINAST: Let's see. Now I

14  want to go on with an affidavit ---

15                Your Honor, this is an affidavit of

16  Ms. Steiner that was attached to the Library's

17  motion to deny Plaintiff's motion for summary

18  judgment. Okay? I've got it labeled No. 9.

19                THE COURT: Okay. Any objection?

20                MR. DOLIN: No.

21                THE COURT: Plaintiff's Exhibit 9

22  is admitted into evidence without objection.

23                MR. NEINAST: Thank you.



 1                         - - -

 2                Thereupon, Plaintiff's Exhibit No.

 3  9 was marked for purposes of identification and

 4  admitted into evidence.

 5                         - - -

 6  Q             (By Mr. Neinast) This is the

 7  affidavit that you signed on the 9th of November

 8  in 2009. Would you please read paragraph three?

 9  A             "The Board of Trustees of the

10  Fairfield County District Library met in regular

11  session on January 20, 2009, and for the stated

12  reason that it is the fiscal responsibility of

13  the Board to reduce and eliminate any risks which

14  may potentially produce costly liability, the

15  Board agreed to maintain its current Code of

16  Conduct which includes a footwear policy."

17  Q             What happened to decorum?

18  A             I don't think anything happened to

19  it.

20  Q             It's not in here. You said here

21  that the reason for this policy is fiscal

22  responsibility. And in the responses to the

23  interrogatories, you said the reason is -- the

24  major reason is a dress code and now you've got


 1  -- and the minor reason was fiscal

 2  responsibility.

 3                And now, under oath, in an

 4  affidavit, you're saying that fiscal

 5  responsibility is it. Could you explain that for

 6  me, please?

 7  A             I'm not sure that this eliminates

 8  the idea of decorum. It's just not stated in --

 9  I don't see it there, but that doesn't eliminate

10  it.

11  Q             So how did this change come about?

12  Why didn't you state that that was the reason?

13  You're sworn to tell the truth, the whole truth.

14  And it appears to me that some of the truth that

15  was back in the second interrogatories, set of

16  interrogatories, has suddenly not been there, so

17  that this does not seem to have the whole truth.

18  A             That certainly wasn't any intention

19  if that's how you perceive it.

20  Q             Okay. You do realize you were

21  under oath back then, and on this, and now?

22  A             Sure.

23  Q             Okay.

24  A             And I can just say by -- you know,


 1  I was working with Roy Hart at the time. On the

 2  advice of Roy Hart, this was ---

 3  Q             So basically ---

 4                MR. DOLIN: Can she finish the

 5  answer?

 6  Q             I apologize.

 7  A             This was how it was presented in

 8  discussion. And, you know, honestly, I don't

 9  remember every -- but this was through the advice

10  on how Roy advised it to proceed.

11  Q             Okay. So you just ---

12  A             This is -- I'm not an attorney

13  either, like you aren't

14  Q             Right. 

15  A             So, in my mind, this is a

16  presentation from advice from a Prosecutor on how

17  to proceed.  

18  Q             So basically, he just put this

19  before you and you signed it, after making sure

20  -- after what? Did you forget the earlier one or

21  you just did whatever -- more or less, whatever

22  he told you to do? 

23  A             He was our legal counsel in regard

24  to this, so ---


 1  Q             Okay. I think you already said --

 2  do you have any legal training?

 3  A             I don't, no.

 4  Q             What's collateral estoppel?

 5                MR. DOLIN: Objection.

 6                THE COURT: Sustained.

 7                MR. NEINAST: I'll provide a basis

 8  for that in just a second.

 9  This is Exhibit 10. You've aot it

10  in your packet.

11                THE COURT: Just a minute.

12                Mr. Dolin, any objection?

13                MR. NEINAST: Let me explain what

14  it is.

15                This was attached to the Library's

16  -- Defendant's motion for summary judgment and

17  response to Plaintiff's motion for summary

18  judgment. It's dated January 7, 2010. And it's

19  labeled Exhibit 10.

20                MR. DOLIN: Well, Your Honor, I

21  think part -- maybe his argument will be it's

22  relevant in part, but isn't. There's a section

23  on the bottom that deals with collateral estoppel

24  issues. The witness testified she can't -- she's


 1  not a lawyer and is not familiar with that term,

 2  I suspect.

 3                Part of this may be relevant, but

 4  I'm going to object to it.

 5                THE COURT: Okay. The Court admits

 6  Plaintiff's Exhibit No. 10 into evidence over the

 7  objection of the Defendant.

 8                MR. NEINAST: Thank you, Your

 9  Honor

10                         - - -

11                Thereupon, Plaintiff's Exhibit No.

12  10 was marked for purposes of identification and

13  admitted into evidence.

14                         - - -

15  Q             (By Mr. Neinast) Was it explained

16  to you by Mr. Hart that affidavits are to be

17  based upon personal knowledge?  

18  A             I don't -- I mean, I don't recall

19  that.   

20  Q             You don't recall?  

21  A             I don't recall that conversation.  

22  Q             Could you please read for me

23  paragraph five?  

24  A             You're talking about the one that


 1  you just gave me?

 2  Q             The one I just gave you, Exhibit

 3  10. 

 4  A             "The Ohio and federal case law

 5  resulting from the litigation between Robert

 6  Neinast and the Board of Trustees of the Columbus

 7  Metropolitan Library demonstrates that the

 8  doctrine of collateral estoppel applies in this

 9  case. As a result of the application of the

10  doctrine of collateral estoppel, Robert Neinast's

11  claims in this case are barred."

12  Q             So can you tell me the difference

13  between this affidavit, this later affidavit, and

14  the earlier affidavit?

15  A             Can I ---

16                MR. DOLIN: Which affidavit are we

17  talking about? 

18                MR. NEINAST: The one that we just

19  did a moment ago. I guess, that would be

20  Exhibit--- 

21                THE COURT: 9.

22                MR. NEINAST: --- 9.

23  Thank you, Your Honor.

24  Q             It's just paragraph five; correct?


 1  A             I see. It looks to be that -- yes,

 2  that that's the difference.

 3  Q             However, you have no personal

 4  knowledge of what you stated in paragraph five;

 5  is that correct? 

 6  A             I know that Roy explained it to me

 7  at the time. Could I tell you what it all meant

 8  right now? No.

 9  Q             But you don't know what collateral

10  estoppel is really, so ---

11  A             Off the top of my head, I'd have

12  to--- 

13  Q             So this is only in here because Mr.

14  Hart put it in front of your face and told you to

15  sign it? 

16  A             He didn't just put it in front of

17  my ---

18  Q             Well, I was speaking

19  metaphorically, but ---

20  A             Sure. On the advice of Mr. Hart,

21  yes.

22  Q             Okay. And when you looked at that

23  at the time, did you -- I mean, this looks like a

24  legal opinion to me. Are you competent to


 1  provide legal opinions?

 2  A             Am I? No.

 3  Q             Okay. Particularly, when the Court

 4  of Appeals -- well, they didn't at that time.

 5                So since you really didn't know

 6  what was going on here, has there been anything

 7  else that you've signed ---

 8                MR. DOLIN: I'm going to object to

 9  the form of the question.

10  Q             --- that you didn't know about?

11                THE COURT: Sustained.

12  Q             Okay. What I'd like to do now is

13  just go back and compare the November 9th

14  affidavit -- that's this one, Exhibit 9 -- and

15  the September 1st response to interrogatories,

16  Exhibit 8. 

17                In the later one, you said, for the

18  stated reason that it's the fiscal responsibility

19  of Board to reduce and eliminate any risks.

20                In the earlier one, you said, the

21  major reason was to promulgate rules that include

22  a dress code, and the minor one for fiscal

23  responsibility.

24                What is the difference between both


 1  of those statements, both under oath?

 2  A             Oh, I guess the difference is the

 3  content.

 4  Q             The order? What is number one

 5  versus what's not even stated, that's the

 6  difference?

 7  A             .(No verbal response.)

 8  Q             Okay. So did something change

 9  between September and November that did that,

10  that made for that difference?

11  A             Between ---

12  Q             Between September, the first

13  September response to interrogatories, and the

14  November affidavit. They disagree with each

15  other. What happened between September and

16  November?

17                MR. DOLIN: I'll object to the

18  characterization. I don't know that they

19  disagree with each other. They have different

20  content.

21                THE COURT: If you can answer the

22  question.

23                Do you know what the question is?

24  Do you understand the question?


 1                MS. STEINER: What changed between

 2  them?

 3  Q             (By Mr. Neinast) Okay. In the

 4  first one, the number one reason is decorum, with

 5  a very minor reason of fiscal responsibility. In

 6  the second one, it's all ---

 7                MR. DOLIN: Again, I'm going to

 8  object. The document speaks for itself, Your

 9  Honor. It doesn't say very minor, it says minor.

10                THE COURT: And that's your

11  interpretation. And you can argue that, Mr.

12  Neinast. Just if you're going to quote the

13  documents, then quote the documents. Okay?

14                MR. NEINAST: My mistake. Sorry.

15                THE COURT: That's okay.

16  Q             (By Mr. Neinast) You see there's a

17  difference and that if nothing else, the order or

18  the emphasis is different on the two?

19  A             I wouldn't say order because --

20  again, I'd say content.

21  Q             The second one only had one.

22                Okay. So the emphasis is different

23  as to -- the reason is changed. The main reason

24  has changed; is that correct?


 1  A             (No verbal response.)

 2  Q             The main reason for the footwear

 3  rule, according to these statements under oath,

 4  has changed from dress code. The major reason

 5  has changed from dress code to fiscal

 6  responsibility; is that correct?

 7  A             I don't know. Again, I think the

 8  content of this ---

 9  Q             Okay.

10  A             I'm sorry.

11                MR. NEINAST: That's sufficient,

12  Your Honor. 

13  A             I'm not trying to not answer,

14  but--- 

15  Q             I understand. I understand.

16  A             --- I'm trying to put my thoughts

17  together. 

18  Q             That's fine.

19                Let me try asking this. Did you

20  basically change your story to try to strengthen

21  an excuse to come up with something better that

22  might be more sustained to keep the shoe rule,

23  based upon those two items?

24  A             I would say that, certainly, the


 1  Board wanted to pursue whatever -- an avenue that

 2  would get us -- you know, they wanted to uphold

 3  the Code of Conduct. So yes.

 4  Q             They wanted to uphold the Code of

 5  Conduct, and basically, they were willing to say

 6  what they needed to say in order to try to have

 7  it upheld in a court. Is that a fair

 8  characterization?

 9  A             I would say, on the advice of the

10  Prosecutor, in order to move -- certainly, I

11  would think that would happen -- I'm not really

12  that familiar with the judicial process, but I

13  think that that's what you would do in any case

14  is to use what you can to build your case.

15  Q             Okay. Let's go back even further.

16  There was a September interrogatory response.

17  That's the first set, Exhibit 8. And the much

18  earlier November 28th meeting minutes when it

19  just said safety would be a legitimate concern.

20                So, once again, this looks like a

21  shift. It used to be safety, and then it became

22  fiscal responsibility. I know you said you see

23  that they're similar, but, I mean, they are

24  different words.


 1                As we saw today ---

 2                MR. DOLIN: Your Honor, these

 3  questions are more colloquy. I'm going to object

 4  to the form. It seems to me that Mr. Neinast is

 5  capable of posing a question.

 6                MR. NEINAST: There was a question

 7  at the end of that.

 8                THE COURT: Okay. Try to -- if you

 9  don't have to preface it with all of the

10  commentary, don't. If you can simply ask a

11  question, that would be best.

12                MR. NEINAST: Okay.

13  Q             (By Mr. Neinast) So first it went

14  from -- if you look at those two documents, it

15  went from safety to fiscal responsibility.

16                MR. DOLIN: Your Honor, I think

17  this has been asked and answered about four or

18  five times now. I haven't objected to it, but I

19  think we've really hit the end of this.

20                THE COURT: Mr. Neinast?

21                MR. NEINAST: Okay. Let me just---

22                THE COURT: Sustained.

23                MR. NEINAST: I'll try to keep it

24  really, really ---


 1  Q             Then going all the way back to the

 2  original letter that you sent me, decorum was the

 3  only excuse at that point.

 4                MR. DOLIN: Asked and answered,

 5  Your Honor. This has been reviewed ad nauseam at

 6  this point.

 7                THE COURT: Sustained.

 8                MR. NEINAST: Okay. That's fine.

 9  Q             What I'd like to do now is take a

10  look at the fiscal responsibility. I guess I'll

11  just skip this because you've already pretty well

12  -- under direct, you talked about how you thought

13  a barefoot patron would affect the library's

14  fiscal integrity.

15                Could you just remind me a

16  realistic scenario that really would cost the

17  library any money that really amounted to

18  anything?

19  A             (No verbal response.)

20  Q             Like glass on the floor and then

21  that would possibly cause a cut. That's the sort

22  of thing you had in mind?

23  A             I would think anything that

24  potentially would result in a customer calling


 1  and, you know, making an insurance report,

 2  looking for some sort of restitution, some sort

 3  of paying doctor bills or something like that for

 4  an injury that was caused would certainly

 5  increase our cost to our liability insurance at

 6  the library. Is that what you're referring?

 7  A             I guess -- I agree. That wasn't a

 8  well-formed ---

 9                But there could also be a case

10  where a high heeled person could catch their heel

11  on the edge of a rug and severely sprain an ankle

12  or break it. That's also true? 

13                MR. DOLIN: I'm going to object.

14  That wasn't one of the bases that the Board gave,

15  nor has there been testimony for it. Asking the

16  witness to speculate. 

17                THE COURT: Mr. Neinast, any ---

18                MR. NEINAST: Where I'm trying to

19  go with this ---

20                THE COURT: It's cross. Overruled.

21                Go ahead.

22  Q             Should I repeat the question?

23  A             Yes, please.

24  Q             If a high heeled person came in,


 1  they could just as easily trip over the rug or a

 2  tile, whatever, break or sprain an ankle and have

 3  all sorts of problems; correct?

 4  A             Correct.

 5  Q             A flip-flop person could come in

 6  from the rain and slip on the -- if I remember

 7  correctly, there's tile right at the entrance

 8  until you get to the booths; is that correct? So

 9  they could ---

10  A             No, we don't ---

11  Q             It's all carpeting?

12  A             It's carpet.

13  Q             Okay. I'll skip that then.

14                After you sent me the email after I

15  gave the talk saying that the library -- that the

16  Board had concerns and it shifted to safety, I

17  wrote you back a very long email. Do you

18  remember that?

19  A             Honestly, I don't remember.

20  Q             It had a lot of attachments to it

21  of one sort or another. Did you look at that

22  email and its attachments?

23  A             I'm sure I did. Certainly.

24  Q             Okay. Let me see. If you'd go


 1  back and pick up Exhibit 6. I think that's the

 2  first set of interrogatories.

 3                So Interrogatory No. 4, could you

 4  please read Interrogatory No. 4 and its response?

 5  A             "In response to the December 1

 6  email, on December 3, 2008, Mr. Neinast emailed

 7  to Ms. Steiner an extensive set of references

 8  regarding barefoot and shod safety, and a list of

 9  lawsuits regarding both barefoot and shod

10  injuries. At the February 19, 2009 Board

11  Meeting, the Board officially upheld the shoe

12  policy. Were those references and list of

13  lawsuits shared with the Board members?"

14                The answer to that first question,

15  "Yes."

16                "Before that Board Meeting, was any

17  investigation done regarding safety issues to

18  validate or refute Neinast's claims and to

19  determine the relative risks associated with

20  various footwear?"

21                The answer to that was, "No."

22  "Were any experts consulted about

23  those safety issues, particularly as they might

24  apply in a library environment?"


 1                The answer to that was, "No."

 2                And then, "If any experts were

 3  consulted, please identify them."

 4                And that was not applicable.

 5  Q             Okay. So how did you share that

 6  with the Board members?

 7  A             I believe I probably just forwarded

 8  the email. 

 9  Q             You forwarded the email?

10  A             Or -- you know what, I honestly

11  don't recall if we made copies and gave it to

12  them at a Board Meeting or forwarded it. I'd

13  have to check back on that.

14  Q             Okay. Did you look at that?

15  A             Yes.

16  Q             Okay. And one of the items that

17  was in there, one of the attachments was called a

18  list of lawsuits entitled "Footwear Injury

19  Cases." Do you recall looking at that?

20  A             I don't specifically recall looking

21  at that or recall what it said.

22                THE COURT: Just a minute.

23                Mr. Dolin?

24                MR. DOLIN: Yes.


 1                THE COURT: Do you have a witness

 2  that came in?

 3                MR. DOLIN: Can we approach on

 4  this?

 5                THE COURT: Yes.

 6                (Thereupon, a side-bar discussion

 7  was held between the Court and counsel as

 8  follows:)

 9                THE COURT: There was a person that

10  just came in the back of the courtroom.

11                MR. DOLIN: It's Mr. Vandervoort.

12                My intention is probably -- I'm

13  most likely going to rest after Ms. Steiner, so

14  Mr. Vandervoort can be his witness.

15                THE COURT: Okay. Well -- okay.

16                THE BAILIFF: He just wanted to

17  know if you're going to be breaking for lunch---

18                THE COURT: Yes, we are. We're

19  going to break for lunch after Ms. Steiner -- or

20  maybe even before she's finished.

21                MR. NEINAST: Probably before. I'm

22  afraid I still have a bit more.

23                THE COURT: Okay. So are we at a

24  good breaking point or ---


 1                MR. NEINAST: If we could do a

 2  little reminder when we come back, if you don't

 3  mind that. 

 4                MR. DOLIN: Would this be a good

 5  time to talk about other timing issues or save

 6  that for later? 

 7                THE COURT: We'll see how things

 8  go. I don't know. 

 9                MR. DOLIN: That's fine. Thank

10  you. 

11                THE COURT: Did you want to ask

12  more questions now, Mr. Neinast? I don't want to

13  interrupt. 

14                MR. NEINAST: If you don't mind if

15  I just re-remind when I come back, okay, of where

16  this came from. 

17                THE COURT: Okay. That's fine.

18                MR. NEINAST: And then when I get

19  into it, there's going to be a couple different

20  questions I'm going to ask.

21                THE COURT: Okay. That's fine.

22                MR. NEINAST: Now is fine. Thank

23  you. 

24                (Thereupon, the discussion was


 1  concluded and the proceedings continued as

 2  follows:)

 3                MR. DOLIN: Your Honor, if I told

 4  Mr. Vandervoort to come back at 1:30, do you

 5  think that would be --- 

 6                THE COURT: Yes.

 7                MR. DOLIN: Thank you very much.

 8                THE COURT: We're going to break

 9  until 10 after 1:00. It's about 12:12. So be

10  back in an hour. 

11                MR. NEINAST: Your Honor, could you

12  remind the witness not to talk about her

13  testimony with --- 

14                THE COURT: Do not discuss the case

15  or your testimony with anyone -- anyone. Then

16  we'll return. 

17                Is there anything else?

18                MR. DOLIN: I just have some

19  scheduling issues, but if we want to discuss

20  those later --- 

21                THE COURT: Why don't you step down

22  and we can stay on the record and we'll discuss

23  the scheduling issues. 

24                MR. DOLIN: That's fine.


 1                THE COURT: Okay. Mr. Dolin, Mr.

 2  Neinast?

 3                MR. DOLIN: Thank you.

 4                I have a commitment with some

 5  people from the Supreme Court tomorrow at around

 6  noon. So I don't know how fast or slow this will

 7  go, but I just wanted to make the Court aware of

 8  that. It's a long-standing and my strong

 9  preference would be not to break that.

10                THE COURT: Very well.

11                Mr. Neinast?

12                MR. DOLIN: For whatever it's

13  worth. My hope is that we're done today, but I

14  don't know.

15                MR. NEINAST: Your Honor, my hope

16  would be, be done today also. But being a pro

17  se, I have no idea how long any of this stuff

18  takes. We've gone through about half of my stuff

19  so far, I think.

20                THE COURT: With this witness?

21                MR. NEINAST: For this witness.

22                THE COURT: Okay. So maybe another

23  half an hour, 45 minutes is a guess. But I

24  wouldn't trust that if I were you.


 1                THE COURT: Okay.

 2                MR. DOLIN: And I guess I would

 3  also add ---

 4                THE COURT: And you have other

 5  witnesses, then, Mr. Dolin?

 6                MR. DOLIN: No.

 7                THE COURT: No other witnesses?

 8  Do you have other witnesses then?

 9                MR. NEINAST: I will want to talk

10  to some of the Board members. If he's not going

11  to talk to the Board members, ask them, I'm going

12  to ask them for some of their recollections to

13  see how it's ---

14                THE COURT: Okay. So we might be

15  finished today.

16                MR. DOLIN: And what about Mr.

17  Hall? Can we forget -- dispense with him?

18                MR. NEINAST: You can tell him not

19  to worry about it.

20                MR. DOLIN: Okay.

21                MR. NEINAST: I think I can manage

22  -- I mean, it's a little bit of a disadvantage,

23  but I don't think enough that it'll make a

24  difference.


 1                THE COURT: Okay. Then we'll come

 2  back and proceed.

 3                (Proceedings recessed for lunch.)

 4                         - - -























                       - - -

ROBERT NEINAST,            :

     Plaintiff,            :

     vs.                   : Case No. 09-CV-0657

BOARD OF TRUSTEES,         :          11-CA-26


LIBRARY,                   :

     Defendant.            :

                       - - -


before the Honorable Chris A. Martin, Judge, at the

Fairfield County Common Pleas Court, Hall of

Justice, 224 East Main Street, Lancaster, Ohio,

held on March 8th, 2011.

                       - - -

                      VOLUME II

                  (Pages 193 - 381)


 1                         Tuesday Afternoon Session,

 2                         March 8th, 2011

 3                THE COURT: We're back on the

 4  record.

 5                The record stopped, so I'm going to

 6  re-instruct the witness.

 7                You're still under oath, Ms.

 8  Steiner.

 9                And Mr. Neinast, I'm sorry, you'll

10  have to start over.

11                MR. NEINAST: Thank you.

12                         - - -

13                    MARILYN STEINER

14     being previously duly sworn, resumed the stand

15        and continued her testimony as follows:

16                   CROSS-EXAMINATION

17                      (Continuing)


19  Q             so just to recap, we had talked

20  about the email that I had sent you that you had

21  forwarded to the Board. And I believe you said

22  that you had printed out this item I called

23  "Footwear Injury Cases," or you said looked at

24  it.


 1  A             I didn't say that I -- I said I

 2  didn't recall whether I just forwarded it or

 3  printed it. I can't recall which -- what the

 4  case was, one or the other.

 5  Q             Okay. Do you recall whether you

 6  looked at it? I'll give it to you in a second.

 7  A             Sure.

 8  - -

 9                Thereupon, Plaintiff's Exhibit No.

10  11 was marked for purposes of identification.

11                         - - -

12  Q             Up next is a copy of this big, long

13  thing that I had sent. It's labeled Plaintiff's

14  Exhibit 11. 

15                THE COURT: Are you asking that

16  this be admitted? 

17                MR. NEINAST: I will. I'll

18  identify it further. 

19                THE COURT: Okay.

20                MR. NEINAST: Yes, I will ask that

21  it be admitted. 

22  Q             So does this look familiar to you?

23  Did you look at this? Do you think you could

24  authenticate it as being what I sent to you?


 1  A             I think so, yes.

 2                MR. NEINAST: Is that good enough

 3  for everybody?

 4  A             Yes, this looks familiar.

 5                MR. DOLIN: So is it being offered

 6  in evidence?

 7                MR. NEINAST: Yes, it is.

 8                MR. DOLIN: We'll object.

 9                THE COURT: Okay. And the basis?

10                MR. DOLIN: It's hearsay, the mere

11  fact that he mailed it to her. It's being

12  offered, I assume, for the truth of the matters

13  asserted therein. They're statements of an out-

14  of-court declarant, and clearly, not statements

15  by this witness under oath. So I do object.

16                THE COURT: Okay. You can go ahead

17  and I'll allow you to identify it now and use it,

18  Mr. Neinast, but then when ---

19                MR. NEINAST: And use it

20  provisionally?

21                THE COURT: Well, when you testify,

22  you can talk about it, if you would, and we'll go

23  from there. It's probably still going to contain

24  statements, but most of it is citations -- it


 1  looks like most of it is citation to case law ---

 2                MR. NEINAST: All of it.

 3                THE COURT: --- and so forth. And

 4  then also, I assume, the first part on the first

 5  page -- are those your words on about three-

 6  fourths---

 7                MR. NEINAST: Yes, those are my

 8  words. It's certainly not statements of truth,

 9  at this point or anything.

10                THE COURT: Okay.

11                MR. NEINAST: Thank you, Your

12  Honor.

13  Q             (By Mr. Neinast) So, what I'd like

14  to do is just take a look at some of these. And

15  the purpose of this is just to make sure that you

16  are aware that there are other ways that people

17  can injure their feet besides going barefoot.

18                So if you could go look to the

19  bottom of page nine, there's one called Lovell v.

20  Hawks. And if you'd just read the description

21  that I wrote.

22                MR. DOLIN: I'm going to object to

23  that, Your Honor. Hearsay.

24                THE COURT: Overruled. Go ahead.


 1  But this is -- these are -- when we

 2  finish this hearing, Mr. Neinast, what I'm going

 3  to do, I'm going to give both parties the

 4  opportunity to prepare some proposed findings of

 5  fact and conclusions of law. In other words,

 6  give me what law everybody thinks is applicable.

 7  And you could cite this in that -- in that

 8  document, if you want.

 9                MR. NEINAST: Your Honor, the

10  purpose of ---

11                THE COURT: But she's not -- she

12  said she's not a lawyer or not law trained. I

13  think she testified to that this morning.

14  What you're trying to prove is

15  there are cases where people have been injured

16  from not wearing footwear.

17                MR. NEINAST: That is correct. I'm

18  not using this for any sort of citation of points

19  of law or anything like that.

20                THE COURT: Okay.

21                MR. NEINAST: The idea behind it is

22  that when I sent this to her, she could have --

23  she should have -- could have or should have

24  looked at it and said, "Oh, yeah, there are these


 1  other ways that people can hurt their feet."

 2  That's the only reason ---

 3                THE COURT: Okay. You can use it

 4  for that purpose.

 5  Q             (By Mr. Neinast) So if you'd just

 6  read that at the bottom.

 7  A             "A woman fell down the steps of the

 8  front porch of a house when the heel of her shoe

 9  got caught in the cinder block that was being

10  used as the bottom step. Summary judgment for

11  the homeowner was affirmed."

12  Q             I can see how those very last

13  things that talk about what happened might be

14  considered legal, so we cannot have you read

15  that.

16                Go to the top of page ten, Robinson

17  v. Martin Chevrolet.

18                MR. DOLIN: Again, Your Honor, I'm

19  going to object. I think this is going far

20  afield. He's quite clearly trying to get into

21  the record out-of-court statements.

22                Obviously -- I will concede that

23  there are a number of ways in which people can

24  hurt their feet.


 1                MR. NEINAST: That's fine. If

 2  they're conceding that, that's fine.

 3                THE COURT: I don't think we need

 4  to go through all these cases or ---

 5                MR. NEINAST: I wasn't going to go

 6  through all of them.

 7                THE COURT: Or any more of the

 8  cases.

 9                MR. NEINAST: But as long as he

10  concedes there's other ways, including tripping

11  over steps and ---

12                MR. DOLIN: I'm not saying specific

13  ways. I'm said what I said.

14                THE COURT: Yeah. Okay. We're not

15  going further ---

16                MR. NEINAST: That's fine. That's

17  fine.

18                THE COURT: --- with the cases.

19                MR. NEINAST: Okay. I picked out

20  just a few just to make it -- that's okay.

21  Q             (By Mr. Neinast) You did get a

22  copy of it and you did look -- do you remember

23  looking through it?

24  A             I vaguely remember looking through


 1  it, yes.

 2  Q             You did see there were a large

 3  number of cases where folks have injured their

 4  feet one way or another while wearing shoes?

 5  A             Yes.

 6  Q             That's good enough. Okay. So you

 7  realize that there are dangers not just to bare

 8  feet, but also to other footwear; right?

 9  A             I realize that, yeah, based on some

10  court judgments, yes.

11  Q             Thank you. So when it came time to

12  think about the barefoot rule, how was it that

13  you folks singled out bare feet as requiring a

14  rule, but none of these other types of footwear?

15  A             I can honestly say we didn't have a

16  discussion -- that discussion didn't come up.

17  Q             Okay. So you weren't trying to be,

18  let's say, fair.

19                MR. DOLIN: I'm going to object to

20  the characterization.

21                THE COURT: Sustained.

22  Q             You weren't trying to be complete?

23                MR. NEINAST: Okay. I'll go on.

24  A             I would say, that's not the


 1  intention at all. We looked at the Code of

 2  Conduct. The entire Code of Conduct has many

 3  points to it and I would say that we did not have

 4  a discussion -- to my recollection, the Board did

 5  not have a full discussion on every point in the

 6  Code of Conduct to any grand ---

 7  Q             Okay. You said in your affidavit,

 8  one of them, that the purpose of the barefoot

 9  rule was to reduce and eliminate any risks which

10  may potentially produce costly liability.

11                MR. DOLIN: Do you have the exhibit

12  number?

13                MR. NEINAST: 9 and 10.

14                MR. DOLIN: It looks like it's 9.

15                MR. NEINAST: 10 is also 9, except

16  it adds the collateral estoppel stuff. So

17  Plaintiff's No. 9.

18                MR. DOLIN: Okay.

19  Q             To reduce and eliminate any risks

20  which may potentially produce costly liability.

21  Would a high heels ban reduce and eliminate any

22  risks which may potentially reduce costly

23  liability?

24                MR. DOLIN: Again, Your Honor, he's


 1  asking her to speculate on any risk. I think

 2  that is speculative and well beyond what this

 3  witness can testify to.

 4                MR. NEINAST: It's their language,

 5  Your Honor. 

 6                THE COURT: Overruled, Overruled.

 7  Go ahead. 

 8  Q             Okay. And if so, why not?

 9  A             Would you repeat your question?

10  Q             Okay.

11                THE COURT: Well, they didn't use

12  high heels as an example.

13  Q             They didn't use high heels as an

14  example, but they said any risk. And so I gave

is an example in my footwear injury suits of various

16  other sorts of risks. Correct? And if it is the

17  case -- the purpose of the Board is to eliminate

18  any risk, that would have been -- that would be

19  important input; is that not correct?

20  A             In regard to any risk?

21  Q             As you said in your affidavit.

22  A             The way you're stating it, I would

23  answer yes. 

24                MR. NEINAST: Okay. Let's go to


 1  Exhibit 12. These are the meeting minutes from

 2  their March 17th, 2010 meeting.

 3                THE COURT: Any objection, Mr.

 4  Dolin?

 5                MR. DOLIN: No, Your Honor.

 6                MR. NEINAST: This is No. 12.

 7                THE COURT: Plaintiff's Exhibit 12

 8  is admitted into evidence without objection.

 9                MR. NEINAST: Thank you.

10                         - - -

11                Thereupon, Plaintiff's Exhibit No.

12  12 was marked for purposes of identification and

13  admitted into evidence.

14                         - - -

15  Q             Would you go to the top of page

16  four -- that's the second to the last page -- and

17  just read that first item? This is part of -- if

18  you look back and see, it was part of, "Old

19  Business, Buildings and Equipment Committee

20  Report."

21  A             So you're talking about right at

22  the top that starts with, "The Amanda

23  Library's..."

24  Q             Yes.


 1  A             Okay. "The Amanda Library's

 2  carpeting is loosening up and creating a

 3  potential safety hazard. If the library is going

 4  to replace the carpeting inside, it makes sense

 5  to do a small renovation. There will be an

 6  install of carpeting, painting and moving things

 7  around a bit to make more space in the back for

 8  staff to work."

 9  Q             Okay. Sounds like that's a hazard;

10  is that correct?

11  A             It was -- the carpeting was

12  becoming unsafe, yes, certainly.

13  Q             Was your response to make a rule

14  prohibiting high heels to prevent them from

15  tripping over it?

16  A             No, there was no such ---

17  Q             Why not?

18  A             (No verbal response.)

19  Q             Why didn't you? Why didn't the

20  Board make a rule banning high heels to deal with

21  this particular possible hazard in the library?

22  A             I would say, they didn't think of

23  it.

24  Q             They didn't think of it.


 1  Okay. And is it repaired now, by

 2  any chance?

 3  A             It is, yes.

 4  Q             It is repaired? Okay. So remind

 5  me. Why is it when you identify a hazard to high

 6  heels, you fix the problem, but when you guess at

 7  a hazard to bare feet, you, instead, ban bare

 8  feet?

 9                MR. DOLIN: I'm going to object. I

10  think this has been asked and answered and it's

11  also argumentative.

12                THE COURT: Sustained for both

13  reasons.

14                MR. NEINAST: Okay.

15  Q             Okay. Now what I'd like to do is

16  go back and talk a little bit about fiscal

17  responsibility.

18  Do you remember a few months back,

19  I sent you the email asking for copies of all

20  these meeting minutes?

21  A             Yes.

22  Q             Okay. And I've looked through

23  those. And I never saw any allocation to pay for

24  this lawsuit. How is this lawsuit being paid


 1  for?

 2                MR. DOLIN: Objection.

 3                THE COURT: Sustained. How ---

 4                MR. NEINAST: You'll see in my next

 5  question. Okay? 

 6                THE COURT: Sustained.

 7                MR. NEINAST: Fine.

 8  Q             How is it that Mr. Dolin is your

 9  representation in this ---

10                MR. DOLIN: Objection.

11                THE COURT: Sustained.

12                MR. NEINAST: Okay.

13  Q             If you folks were injured -- if

14  there were an injury lawsuit, who would be your

15  representation? 

16                MR. DOLIN: Objection.

17                THE COURT: Sustained.

18                MR. NEINAST: Your Honor ---

19                THE COURT: Sustained. I'm not

20  going to allow Mr. Dolin to ask you why you're

21  representing yourself, things like that. Those

22  are -- and it's not relevant to this at this

23  point. 

24  Q             If there were an injury lawsuit,


 1  how would it be paid for?

 2                MR. DOLIN: Objection.

 3                THE COURT: Sustained.

 4                MR. NEINAST: Your Honor, we're

 5  talking to fiscal responsibility. If it turns

 6  out that the Prosecutor's Office, as stated in

 7  309.09, is representative of the library, and

 8  they do not bill back any costs to the library,

 9  then the cost of the attorney is no longer part

10  of their fiscal integrity.

11                THE COURT: Well, it is -- it is,

12  because it takes time. It takes the Prosecuting

13  Attorney's time. It takes tax payers' time. And

14  it's also a possibility if they have insurance,

15  which I believe there's been some evidence of

16  that, an insurance company may choose to

17  represent them.

18                So rather than have the Prosecuting

19  Attorney's Office represent them, because they

20  may want to assume the responsibility for

21  defending the lawsuit so that they know that

22  their attorney is doing it. So there's all kinds

23  of things that are really outside -- would be

24  outside the control of a person in that


 1  situation.

 2                MR. NEINAST: 309.09 says: The

 3  Prosecutor's Office shall prosecute and defend

 4  all suits.

 5                THE COURT: I hear what you're

 6  saying, Mr. Neinast, and so you can make that

 7  argument, but we're going to move on.

 8                MR. NEINAST: Okay. Let's move on.

 9                Let's see. I have here a copy of

10  the insurance policy that they sent to me as part

11  of the answer to interrogatories. It's No. 13.

12  I'd like to make it part of the record.

13                THE COURT: Any objection, Mr.

14  Dolin?

15                MR. DOLIN: I guess I'd like to

16  know what it's offered for.

17                THE COURT: Mr. Neinast?

18                MR. NEINAST: I was going to ask if

19  there's anything in there prohibiting -- where

20  they require that the library prohibit bare feet.

21                MR. DOLIN: For that purpose, I

22  have no objection.

23                THE COURT: Okay. For that

24  purpose, Plaintiff's Exhibit 13 is admitted into


 1  evidence.

 2                         - - -

 3                Thereupon, Plaintiff's Exhibit No.

 4  13 was marked for purposes of identification and

 5  admitted into evidence.

 6                         - - -

 7  Q             Is there anything in this policy

 8  that says in order to maintain the policy, or be

 9  in good standing with the policy, or that they

10  wouldn't pay if it happened, that you have to

11  prohibit patrons from having bare feet in the

12  library? 

13  A             I have not -- I'd have to read

14  through this to see if it said that.

15                THE COURT: Do you know of

16  anything, Mr. Neinast?

17  Q             If you would look back at Exhibit

18  No. 6, and look at Interrogatory No. 8, please.

19                Please read Interrogatory No. 8.

20  A             "Please state whether any of the

21  library's insurance policies require, at any time

22  required, or is being (or has been) interpreted

23  to require, that the library enforce a barefoot

24  policy as part of coverage. If so, please append


 1  a copy of the relevant portion of these insurance

 2  policies to your answers."

 3                And the response was, "No."

 4                So I would guess, then, not having

 5  read through it right now, based on that ---

 6  Q             You'll agree with what you said

 7  before? Okay. So there's nothing in the

 8  insurance policy that says you have to ban bare

 9  feet in order to maintain coverage, based on what

10  you said

11  A             Based on what -- exactly.

12  Q             --- in the interrogatory which we--

13                Okay. So -- I mean, insurance

14  companies would pay if there were such an injury

15  for a barefooted patron, just like they would for

16  a high heeled woman who caught her foot in a rug;

17  is that correct?

18                MR. DOLIN: I'm going to object. I

19  don't know what she can testify about what an

20  insurance company is doing. As the Court knows,

21  sometimes they withhold. Sometimes they do it

22  under reservation of rights. She can testify

23  that there was an insurance policy, certainly,

24  but beyond that, I think it's speculation.


 1                THE COURT: Sustained. What the

 2  insurance company may or may not pay for --

 3  there's a lot of different reasons ---

 4                MR. NEINAST: Now that you mention

 5  it, I agree. You never know what they're going

 6  to do.

 7                THE COURT: Right.

 8  Q             (By Mr. Neinast) Let me just --

 9  let's see. I'm kind of winging it here.

10                As long as you've got Exhibit 6 up,

11  could you read No. 11 for me?

12  A             "Please provide details about any

13  lawsuits by patrons against the library in the

14  past five years, including only lawsuits in which

15  the patron was injured on library premises.

16  Please include the court, the case title, the

17  case number, the type of injury, the type of

18  footwear the patron was wearing (if known), and

19  whether the patron recovered or not (if known)."

20                And the answer was, "None."

21  Q             Okay. So you're actually pretty

22  good about not getting sued, at least for the

23  last five years.

24                MR. DOLIN: Objection.


 1                THE COURT: Sustained.

 2                MR. NEINAST: Okay. But I only

 3  went back five years.

 4                THE COURT: You're making a

 5  statement. 

 6                MR. NEINAST: I'm sorry. It takes

 7  me awhile to kind of figure this stuff out ---

 8                THE COURT: That's fine.

 9                MR. NEINAST: --- because it,

10  obviously, does not come naturally to me.

11                THE COURT: Okay.

12  Q             (By Mr. Neinast) The interrogatory

13  only went the past five years. Do you know of

14  any lawsuits or injuries against your library?

15  A             I don't know all the details, but I

16  do know that there was ---

17  Q             Aside from me, of course.

18  A             No. There was one before I started

19  at the library, someone tripping on the sidewalk

20  or something. And again, I don't know the

21  details, but I do know that there was at least

22  one. 

23  Q             Okay. So all those incidents that

24  were in Defendant's Exhibit No. 8, that were the


 1  library incident reports, none of those related

 2  -- none of those ended up in a lawsuit; is that

 3  correct? 

 4  A             In a lawsuit? Not to my knowledge,

 5  no. 

 6  Q             Okay. Do you have any knowledge

 7  that barefooters are somehow more likely to sue

 8  for an injury than non-barefooters?

 9                MR. DOLIN: Objection. Calls for

10  speculation. 

11                MR. NEINAST: This is their job.

12                THE COURT: Sustained.

13  Q             How many barefooters might you

14  expect to be suddenly using your library if this

15  rule were removed?

16                MR. DOLIN: Objection.

17                THE COURT: Same basis?

18                MR. DOLIN: Yes, Your Honor.

19                THE COURT: Mr. Neinast?

20                MR. NEINAST: Okay.

21                THE COURT: Sustained.

22                MR. NEINAST: Okay.

23  Q             Let's go back to Exhibit 6. And

24  let's read No. 10 and its response.


 1  A             "Please provide a list of

 2  conditions in the library that constitute a

 3  hazard to barefooted patrons, but not to shod

 4  patrons. Additionally, please provide th basis

 5  for considering each condition a hazard. If any

 6  experts were consulted, please identify them."

 7                And the response was, "No list

 8  exists that can be provided."

 9  Q             Could I ask, what is Defendant's

10  Exhibit No. 8?

11                MR. DOLIN: I think those are the

12  unusual incident reports. 

13                THE COURT: The witness has them.

14                MS. STEINER: I don't have that.

15                MR. DOLIN: Actually, it's No. 9.

16                MS. STEINER: Oh, No. 9?

17                MR. NEINAST: I'm sorry.

18                MR. DOLIN: 8 are the photographs.

19                MR. NEINAST: Okay.

20  Q             So this is -- this is a list of

21  incidents that might be of danger to barefooted

22  patrons, isn't it? 

23  A             I would say that when ---

24  Q             It was used ---


 1                MR. DOLIN: I'm going to object to

 2  the characterization.

 3                The interrogatory calls for a list.

 4  That's what was responded to. I don't see those

 5  as a list, but it seems to me characterizing it

 6  as a list doesn't make it anything other than

 7  what it is.

 8                THE COURT: Okay. Mr. Neinast?

 9                MR. NEINAST: A list could have

10  been prepared from these ---

11                THE COURT: Yeah, but ---

12                MR. NEINAST: --- that answered ---

13                THE COURT: I guess the question

14  is, did a list exist at the time that

15  interrogatory was answered.

16                MR. NEINAST: I think that's

17  semantics. The question did not ask whether a

18  list exists at this time.

19                THE COURT: I know.

20                MR. NEINAST: It says, please

21  provide one.

22                THE COURT: I don't disagree it's

23  semantics. So I think we've agreed ---

24                MR. NEINAST: I think in the normal


 1  course, folks would say yes. And obviously, in

 2  this situation, I'm looking for the list of the

 3  hazards so that I can use that in this context.

 4  It seems pretty obvious to me that the right

 5  answer would be to provide me with these.

 6                THE COURT: Okay. Was there a

 7  list, do you know?

 8                MS. STEINER: A list, per se?

 9                THE COURT: A list.

10                MS. STEINER: No.

11                THE COURT: No.

12                MS. STEINER: We keep the unusual

13  occurrences by the date that they happen, no

14  matter what the context of the unusual occurrence

15  is.  

16                MR. NEINAST: It did not say is

17  there a list. It says, please provide a list.

18  And if that requires them to make one ---

19                THE COURT: Let me see.

20                (Pause in proceedings.)

21                THE COURT: You're referring to

22  Interrogatory ---

23                MR. NEINAST: No. 10, please.

24                (Pause in proceedings.)


 1                THE COURT: It doesn't ask for a

 2  list of instances where there was a problem. It

 3  says: Please provide a list of conditions in the

 4  library; in other words, those things that they

 5  would consider to be a hazard.

 6                Is that not correct?

 7                MR. NEINAST: That is correct, but

 8  if you, for instance, look at his -- so we're

 9  looking at Defendant's No. 9 on page E, there

10  were large pieces of broken glass.

11                That is a condition in the library

12  that constitutes a hazard to a barefooted patron,

13  but not to a shod patron.

14                THE COURT: I believe the way the

15  interrogatory was phrased -- you're asking now

16  for something else. I understand what you're

17  trying to point out.

18                MR. NEINAST: Okay.

19                THE COURT: They had these items,

20  Exhibit 9, within their possession, and you wish

21  that they would have said, "We don't have a list

22  of conditions, but we've got these things";

23  Right, so that you would have them?

24                MR. NEINAST: I would have expected


 1  them to create -- based upon these things, I

 2  would have expected them to have created a list

 3  to let me know what they were, so that I could,

 4  then, ask for the list -- ask for the contents or

 5  whatever.

 6                THE COURT: I think the record is

 7  clear what happened, what didn't happen.

 8                MR. DOLIN: I would say, Your

 9  Honor, as I understand it ---

10                THE COURT: At this point, we'll

11  move on.

12                MR. DOLIN: --- the purpose of

13  interrogatories is not to create documents,

14  whether or not they exist, it's to answer

15  questions.

16                If Mr. Neinast had a problem with

17  this particular answer, he had other remedies

18  under the Civil Rules at the time. Those

19  remedies were not taken. And it seems to me that

20  at this point, I'm not quite sure where this is

21  going.

22                THE COURT: Right.

23                MR. NEINAST: Of course, I

24  interpreted this to mean that they knew of no


 1  hazards.

 2                THE COURT: Okay. Okay.

 3                MR. NEINAST: I was going to go

 4  back and do the same thing with No. 9 that asked

 5  about known physical defects in the building, but

 6  that probably falls under the same thing, the

 7  same wording.

 8  Q             (By Mr. Neinast) Well, let me ask

 9  you right now. Are you aware of any known

10  physical defects within or on the grounds of the

11  library right now that would be a danger to a

12  barefooted patron either right now or at any time

13  in the past?

14                MR. DOLIN: Again, Your Honor, I

15  think the witness has testified this morning that

16  things fall on the floor. As she's sitting here

17  now, might there be tacks, staples, a whole host

18  of things on the floor? It's certainly possible.

19  She has no way of knowing that.

20                I think it calls for speculation

21  that she's just not capable of doing right now.

22                THE COURT: Overruled. Go ahead.

23                If you can answer the question, you

24  can answer it.


 1  A             Am I aware of specifically ---

 2  Q             Let me just make sure I'm very

 3  clear on the question.

 4  A             Okay. Sure.

 5  Q             I'm not asking for things like

 6  tacks or glass or whatever, because those are not

 7  physical defects in the grounds or the building

 8  itself. I'm asking for physical defects.

 9                THE COURT: Do you understand the

10  question? 

11  A             I'm trying to put together what all

12  that might constitute.

13  Q             For instance, in the parking lot,

14  there is a spot where there used to be a pole in

15  there, but it looks like it's been cut off just

15  around -- just above the thing.

17  A             Yes.

18  Q             So you are aware of those sorts of

19  defects? 

20  A             And I would say, I know our

21  sidewalks at some of our locations are getting to

22  the point that ---

23  Q             So they're on the outside ---

24  A             --- there could be repairs needed.


 1  Sure.

 2  Q             On the outside, there may be some

 3  physical defects. How about on the inside of the

 4  building? 

 5  A             It's possible. I'm not positive.

 6  Q             You're not aware of any?

 7  A             I can't specifically -- in my mind,

 8  trying to picture specifically. There could be.

 9  Q             Okay. Does the footwear rule apply

10  in your parking lot?

11  A             I'm not sure. It's a public

12  sidewalk, a public ---

13  Q             Well, the parking lot is yours, I

14  assume, maybe.

15  A             Honestly, I would say we didn't

16  enforce it outside. I can't think of a time that

17  we were outside, if we saw someone barefoot, that

18  I would tell someone they had to have their shoes

19  on if I saw them outside.

20  Q             Okay.

21  A             I don't believe I've ever

22  encountered that or I'm not sure that I would.

23  Q             Probably never thought of it.

24  A             Uh-huh.


 1  Q             Okay. That's fine.

 2                This is probably the wrong order to

 3  ask this. Do you know what wonton and willful

 4  means?

 5                MR. DOLIN: Objection.

 6                MR. NEINAST: I knew that.

 7                THE COURT: Sustained. It's asking

 8  for a legal conclusion.

 9                MR. NEINAST: It's stuff that she

10  didn't -- okay.

11                See, this line is probably all just

12  a question of law, so we can X it out.

13  Q             I'd just like to check something.

14                Going back to Exhibit No. 6 again.

15  I'll just clean up one other thing.

16                Interrogatory No. 13, would you

17  read it, and its response?

18  A             "Do you contend that bare feet on a

19  patron are in any way disruptive of the library

20  environment, or represent a danger to any other

21  patrons? If so, in what way? And if so, how are

22  flip-flops not equally disruptive or dangerous?"

23                And the response is, "Unknown."

24  Q             Actually, I'm afraid I'm a little


 1  confused on my notes, so this may not ---

 2                I'm sorry. I did not mean for you

 3  to read that any more, at least not based on what

 4  I've learned so far.

 5                Let's go instead to -- let's see,

 6  Interrogatory 21. I don't know if it's this one

 7  or that's in the second set of interrogatories.

 8                It's the second set of

 9  interrogatories, so that would be Exhibit No, 8.

10  A             And you said 21?

11  Q             Yes, No. 21.

12  A             "Neinast used the Fairfield County

13  District Library (or a branch location thereof)

14  barefoot on November 26, 2007, December 12, 2007,

15  April 10, 2008, and April 23, 2008. Did

16  Neinast's barefoot presence on those days in any

17  way disrupt the library environment? If so, in 16 what way?"

19                And the response was, "Assuming,

20  for the sake of argument, that Neinast used the

21  Fairfield County District Library facilities on

22  the dates in question, Neinast's barefoot

23  presence did not disrupt the library

24  environment."


 1  Q             Okay. So you -- let me make sure,

 2  since one of the reasons that has been given in

 3  this thing is about decorum. This did not seem

 4  to affect decorum in any -- decorum in any way?

 5                MR. DOLIN: Your Honor, I'm going

 6  to object because it assumes facts. And the very

 7  answer says, assuming those facts to be true, but

 8  those facts have not been proven and they're not

 9  in evidence.

10                MR. NEINAST: Your Honor, I will be

11  willing to -- I mean, as soon as I get on the

12  stand, I'm going to verify that I was there on

13  these dates.

14                Furthermore, when they say, for the

15  sake of evidence, her personnel asked me

16  specifically to leave on April 23rd.

17                MR. DOLIN: I'm going to object,

18  Your Honor. This is a statement. It's not ---

19                MR. NEINAST: I thought I was

20  responding to the Judge's request for me to talk

21  about it.

22                THE COURT: I didn't even -- I

23  don't think I said anything. You were ---

24                MR. NEINAST: I'm sorry.


 1                THE COURT: People were just

 2  talking, so ---

 3                MR. NEINAST: I'm sorry.

 4                THE COURT: Do you know whether or

 5  not he was present on that day?

 6                MS. STEINER: On which day?

 7                THE COURT: On those days that are

 8  in the interrogatory.

 9                MS. STEINER: The only date that I

10  would be aware of would be the date that we had

11  the staff person report that they asked Mr.

12  Neinast to put on shoes in order to come back to

13  the library. We did not have any sort of report,

14  unusual occurrence, on any of those other dates

15  in regard to Mr. Neinast.

16                THE COURT: Okay. Well, the

17  question is, did it disrupt the library

18  environment on that day, and if so, how. Do you

19  know if it did?

20                MS. STEINER: I would say if it

21  had, there probably would have been a report of

22  unusual occurrence made if there was a

23  disruption. So I can only assume that there

24  wasn't, if he was there, because we didn't have


 1  any such report made.

 2                THE COURT: Okay.

 3  Q             (By Mr. Neinast) When I was there,

 4  was there an incident report written up when the

 5  personnel asked me to leave?

 6  A             I can't recall. I'm not sure. I'd

 7  have to go back and look.

 8  Q             Okay. But there was certainly no

 9  incident reports written up on any other these

10  other days? 

11  A             No.

12  Q             And the staff is generally

13  instructed to write up obstructive occurrences

14  when they occur in the library?

15  A             Generally, yes.

16  Q             Okay. That's good enough.

17                When did the library first enact

18  its shoe rule?

19  A             I believe it was 1997.

20  Q             It was the 1997 -- so Defendant's

21  exhibit -- whatever it was?

22  A             I believe that was the first time

23  we could go back to find anything.

24                MR. DOLIN: I think it's Exhibit


 1  No. 1.

 2                THE COURT: Exhibit No. 1?

 3                MR. NEINAST: Exhibit No. 1,

 4  Defendant's Exhibit No. 1.

 5  Q             Do you have any idea why 1997 would

 6  be the very first time a shoe rule was felt

 7  necessary? 

 8  A             I wasn't working at the library at

 9  the time. I do not know why.

10  Q             No discussion on that.

11                I guess it -- okay. I can't ask

12  that one. 

13                MR. NEINAST: I'm sorry, Your

14  Honor. I'm discarding stuff right now that

15  probably nobody likes.

16  Q             Something else I noticed. In the

17  Code of Conduct here -- this is Defendant's

18  Exhibit 1 and Exhibit 2 -- the main difference

19  seems to be if a child has learned to walk, the

20  child must wear shoes. Why is that difference

21  there? 

22  A             Well, I would say there are a lot

23  of differences. There were a lot of additions

24  made. 


 1  Q             I was asking specifically the

 2  footwear policy in '97, just that shoes are

 3  required to enter.

 4  A             Okay.

 5  Q             And then in 2007, the version that

 6  was passed then says -- has an additional

 7  statement that if a child has learned to walk,

 8  the child must wear shoes.

 9                I was wondering, was there some

10  incident that prompted that?

11  A             I can recall that, yes, we had a

12  particular family, that I can recall, with

13  several children that came in on a daily basis.

14  And the young children were running around with

15  shoes -- without shoes on and ---

16  Q             But there were no injuries to them

17  that prompted this?

18  A             Oh, they were falling. You know,

19  they were toddlers, so yeah, they were ---

20  Q             Were there falling down injuries,

21  but not foot injuries?

22  A             I can't remember exactly. You

23  know, I don't -- just that they were toddlers.

24  Q             Okay. If we could go to my Exhibit


 1  17. Now, this is the one that I handed out

 2  earlier for Dr. Landers.

 3                It's the picture of the Lancaster

 4  Eagle Gazette. I'm hoping I can get it into

 5  evidence at this time.

 6                So this is the Lancaster Eagle

 7  Gazette from June 29th, 2009. It appears to have

 8  a story about a zoological puppet show put on by

 9  the Slate Run Naturalists.

10                Do you remember this story?

11  A             I don't remember the story, but I

12  know -- I do remember that that was a program

13  that we had last summer. I wasn't there for the

14  program, but I recall that that was on our list

15  of programs to have.

16  Q             Okay. Does that picture look like

17  it is what I claim it is, which is a picture of

18  children paying attention in the library?

19  A             It looks like it to me.

20                MR. NEINAST: Your Honor, can I

21  have this accepted into evidence?

22                THE COURT: Yes.

23                MR. DOLIN: Well, Your Honor, I

24  just might say, what's being offered, the photo


 1  or the content?

 2                MR. NEINAST: Just the photo.

 3                THE COURT: Just the photo.

 4                MR. DOLIN: No objection to the

 5  photo.

 6                THE COURT: She's identified the

 7  photograph sufficiently, so it's admitted into

 8  evidence as Plaintiff's Exhibit 17.

 9                MR. NEINAST: Great.

10                         - - -

11                Thereupon, Plaintiff's Exhibit No.

12  17 was admitted into evidence.

13                         - - -

14  Q             (By Mr. Neinast) Do you see the

15  bare legs of children on the carpeting there?

16  A             I do.

17  Q             Do you make a special effort to

18  specially examine the floors of the library

19  before any children might be there?

20  A             I would say, I know -- in the Youth

21  Services Department, we have carpeting, and if

22  we're going to have a program where we're going

23  to ask the kids to sit on the floor, we typically

24  make sure that we ask our custodians to make sure


 1  the floor is swept.

 2  Q             But if there are staples, sweeping

 3  won't necessary pull stuff off a rug correctly;

 4  right?

 5  A             It's possible there could be things

 6  left behind. 

 7  Q             Do you have any rule prohibiting

 8  children from sitting on the floor?

 9  A             No.

10  Q             If there's MRSA on the floor and

11  children have a scratch on their leg, is that a

12  danger to that -- a hazard to that child?

13  A             As Professor Landers said this

14  morning, I imagine it -- there's always that

15  potential. 

16  Q             And actually, any old patron

17  wearing shorts could kneel on the floor to get a

18  book on a lower shelf and if they had any cuts,

19  the same sort of thing could happen; correct?

20  A             That could happen.

21  Q             Okay. Now that you know this, will

22  you recommend to the Board that they enact a new

23  rule to keep children from sitting on the floor?

24                MR. DOLIN: Objection. If I might


 1  say, Your Honor, we're talking about the reasons

 2  for the rule. What happens in the future has

 3  nothing whatsoever to deal with what happened in

 4  the past. 

 5                THE COURT: Sustained. What we're

 6  looking at is where they're at now and where

 7  they've come from, so ---

 8                MR. NEINAST: Okay.

 9  Q             Let me ask you as a librarian,

10  knowing this -- I'm not sure how to phrase that.

11                Okay. Hang on.

12                I'd like to get in here about

13  Health Departments. I'm not sure how it's going

14  to work. 

15                If you could go to Interrogatory

16  12. That is in Exhibit 6 again.

17                If you'd read that for me, please.

18  A             "Do you contend that any relevant

19  Health Department requires shoes in a public

20  building? If so, which health Department?

21  Please include a copy of any Health Department

22  regulation."

23                And the response was, "No."

24  Q             So you're unaware of any Health


 1  Department regulations requiring shoes in public

 2  buildings, just to restate it?

 3  A             I called our Health Department to

 4  ask if they had such a regulation, and they told

 5  me they did not.

 6  Q             Okay. Thank you.

 7                Do you ever go barefoot?

 8                MR. DOLIN: Objection.

 9                THE COURT: Sustained.

10  Q             Would you be afraid to go barefoot

11  in the library?

12                MR. DOLIN: Objection.

13                THE COURT: Sustained.

14  Q             Okay. Let's see. The rest of

15  these are kind of expert stuff.

16                Okay. I guess I'm almost done.

17                Let's just go back to the second

18  set of interrogatories, which is Exhibit -- I

19  just want to make sure this is in the record --

20  No. 8, Exhibit No. 8. And Interrogatory No. 22,

21  if you'd just read that and its response.

22  A             "On those days that Neinast used

23  the Fairfield County District Library barefooted,

24  is there any evidence that his barefootedness


 1  placed the other patrons in danger? If so, in

 2  what way?" 

 3                The response was, "Assuming, for

 4  the sake of argument, that Neinast used the

 5  Fairfield County District Library facilities on

 6  the dates in question, Neinast's barefootedness

 7  did not place other patrons in danger."

 8  Q             Okay. Do you still adhere to that?

 9  A             Again, there was no unusual

10  occurrence, no report to me that there was a

11  problem. 

12                MR. NEINAST: Okay. That's all I

13  have, Your Honor.

14  Thank you, Ms. Steiner.

15                THE COURT: Mr. Dolin?

16                MR. DOLIN: I have no redirect,

17  Your Honor. 

18                THE COURT: Okay. You may step

19  down. 

20                Do you have any other witnesses?

21                MR. DOLIN: I have no other

22  witnesses. I'd just -- I think all my exhibits

23  are in evidence, but just out of an excess of

24  caution, I'm going to re-move Defendant's 1


 1  through 11. I think they're already in evidence.

 2  And then I will rest.

 3                THE COURT: Okay. Mr. Neinast, do

 4  you recall if there were any objections to 1

 5  through 11?

 6                MR. NEINAST: I'm afraid not.

 7  There's No. 17 in here, but there's some that I

 8  didn't put into evidence because of other ---

 9                MR. DOLIN: No. We're talking

10  about my exhibits now.

11                MR. NEINAST: Oh, yours. That's

11  12 fine.

13                THE COURT: Okay. Defendant

14  Exhibits 1 through 11 are admitted into evidence.

15  They were previously admitted, but ---

16                         - - -

17                Thereupon, Defendant's Exhibit No.

18  11 was admitted into evidence; however, it was

19  not identified in the record. Defendant's

20  Exhibits Nos. 1 through 10 were previously

21  admitted.

22                         - - -

23                THE COURT: Mr. Neinast, do you

24  need a little bit of time before you start your


 1  case or do you wish to start?

 2                MR. NEINAST: Do you know if the

 3  witnesses are here?

 4                MR. DOLIN: I think Mr. Vandervoort

 5  is outside.

 6  If I may, Your Honor, just have a

 7  brief break.

 8                THE COURT: Yes. Why don't we take

 9  just five minutes. It's five 'til 2:00. We'll

10  come back at 2:00 and we'll get started.

11                (Proceedings recessed.)

12                THE COURT: We're back on the

13  record. All the participants in the hearing are

14  reassembled in the courtroom.

15  Mr. Neinast, you may proceed.

16                MR. NEINAST: Okay. I'd like to

17  call Mr. Vandervoort, if I could, please.

18                THE COURT: Mr. Vandervoort?

19                (Witness duly sworn.)

20                         - - -






 1                   PETER VANDERVOORT

 2     being first duly sworn, testified as follows:

 3                  DIRECT EXAMINATION


 5  Q             Could you please state your name

 6  and spell it, please, the last name?

 7  A             I'm a little hard of hearing, so

 8  I'll need you to speak up.

 9  My name is Peter M. Vandervoort.

10  Q             And spell it, please.

11  A             P-e-t-e-r M. V-a-n-d-e-r-v-o-o-r-t.

12  Q             Thank you. And you are a lawyer by

13  profession? 

14  A             I'm a retired lawyer.

15  Q             Okay. And you are on the Board of

16  Trustees for the Fairfield County District

17  Library. 

18  A             Correct.

19  Q             And have been on the Board for how

20  long? 

21  A             Well, longer than I thought. The

22  record seems to show I started about '97. I do

23  not remember. 

24  Q             Okay. Were you present at the


 1  meeting when my request first came in to remove

 2  the footwear rule?

 3  A             I've been in on the whole thing, so

 4  probably, yes.

 5  Q             Okay. The meeting minutes say that

 6  there was a brief discussion about the request.

 7  Can you remember anything about that?

 8  A             I remember being in on it.

 9  Q             That's all? Nothing about what was

10  talked about or what the reason for the rule was?

11  A             It was discussed and it was

12  unanimous that it was appropriate.

13  Q             Appropriate. Okay. So ---

14  A             I mean, appropriate, the

15  prohibition against barefoot was -- it was agreed

16  that it was an appropriate resolution.

17  Q             Okay. Ms. Steiner stated under

18  oath that decorum was the reason. Is that pretty

19  much what you're saying here?

20  A             No. I think there was a general

21  feeling that -- first of all, you have to realize

22  that we're fiduciaries of the library. And the

23  things we do are basically designed to make the

24  library a useful tool for the people, a safe


 1  place, and a best possible place to read books.

 2  Q             Excuse me. Was that under

 3  discussion in that meeting at that point?

 4  A             Probably not all of that.

 5  Q             Okay. Because, as I said, Ms.

 6  Steiner's statement was that it was only --

 7  decorum was the only thing that showed up in the

 8  answer to interrogatories.

 9  A             Well, there's one retired lawyer on

10  the Board and the rest are laymen. And there is

11  a -- we have an excellent Library Director, but

12  none of us realized that we were under the gun at

13  the time and we were trying to maintain a proper

14  library. And probably should we have known that

15  we were going to be attacked for this resolution,

16  we would have had lawyers draft it. So that's

17  sloppy drafting on our part.

18  Q             Okay. I was really only asking for

19  what the discussion was, but we'll go on.

20  When I came in and gave my

21  presentation, did I have on footwear?

22  A             Did you?

23  Q             Yes. Do you remember whether I had

24  footwear on or not?


 1  A             I do not remember.

 2  Q             If I had been barefoot, it

 3  obviously did not affect the decorum of that

 4  meeting?

 5  A             I don't remember.

 6  Q             Okay. I actually did have flip-

 7  flops on.

 8  A             I see you are not barefoot now. Is

 9  that because you pick on weak sisters and are not

10  so devoted to your cause?

11                MR. NEINAST: Your Honor ---

12                THE COURT: Mr. Vandervoort, just

13  answer the questions, please.

14                MR. VANDERVOORT: Yes, Your Honor.

15  Q             Could you tell me what your

16  thoughts were on the presentation, whether

17  there's anything that might have swayed you? Or

18  did you pay attention to it; or had you already

19  made up your mind so it didn't matter what I

20  said, it didn't change anything?

21  A             I try always to pay attention to

22  what the library is doing. I read all of the

23  documents that are presented to us and I take

24  that job very seriously.


 1  Q             Okay. We'll go with that.

 2                After that meeting, did the Board

 3  discuss -- the Board did discuss my request;

 4  correct? 

 5  A             What was that, about two years ago?

 6  I do not --- 

 7  Q             Probably, something like that.

 8  A             Yeah, well, I think they did.

 9  Q             Okay. Do you remember anything

10  about that, as to what the reasons were for ---

11  A             Only that we felt it was

12  appropriate. There was no dissension. It was

13  unanimous. 

14  Q             Okay. And that's the meeting in

15  which the Board asked Ms. Steiner -- sorry. I

16  keep forgetting to talk loud. That was the

17  meeting in which the Board asked Ms. Steiner to

18  contact Mr. Hart. Okay. Did you also ask her to

19  contact the Fairfield County Health Department?

20  A             I don't know.

21  Q             Okay. Did you ask Ms. Steiner to

22  contact an expert of some sort regarding safety?

23  A             At that moment -- at that -- not to

24  my knowledge. 


 1  Q             Okay. And the reason you had her

 2  contact Mr. Hart was?

 3  A             He's the attorney for the Board.

 4  Q             What did you want to get out of Mr.

 5  Hart? 

 6  A             His direction as an attorney as to

 7  what we should be doing.

 8  Q             At that point, the main reason was

 9  decorum. Were you trying to find a way for him

10  to maintain the rule, regardless of whether it

11  made sense or not?

12  A             Absolutely not.

13  Q             In other words, you were sure at

14  that point that the rule made sense?

15  A             Yes.

16  Q             Okay. I just want to make sure --

17  at some point. I sent an email to Ms. Steiner

18  with a bunch of information about safety, and it

19  had attached to it a bunch of documents,

20  scientific papers about how shoes are also

21  hazardous. Did she forward that email to you?

22  A             I believe she did and I read most

23  of it.

24  Q             You did read most of it? Did it


 1  convince you of anything?

 2  A             No.

 3  Q             No.

 4  A             Because it was -- never mind.

 5  Q             Okay. According to the responses

 6  to the interrogatories earlier, this library

 7  first instituted any sort of rule regarding shoes

 8  back in 1997. The meeting minutes for that date

 9  show that you attended that meeting. Do you

10  recall anything as to why it took until 1997 --

11  and the library had been in existence for a long

12  time. Why it was in 1997 that a footwear rule

13  suddenly -- that's probably a bad

14  characterization -- was the first time that it

15  had to have a barefoot rule?

16  A             Well, I don't know whether it was

17  the first time, whether there was one preceding

18  it or not. I have no idea.

19  Q             It is on the record.

20  A             What's that?

21  Q             It is on the record that that was

22  the first time.

23  A             Then it probably was presented to

24  us by the Library Director who has a number of


 1  sources of information, of things the library

 2  should be doing. And it was probably presented

 3  to us then and we agreed.

 4  Q             Okay. How long have you been a

 5  lawyer?

 6  A             I think I started about 1901. I

 7  was licensed in ---

 8  Q             Would it be 1963?

 9  A             Yes.

10  Q             That's what it says on the Supreme

11  Court website, so I guessed as much.

12                Have you ever done any premises

13  liability?

14  A             Premises liability? Very little.

15  Q             Very little. But you are aware of

16  what contributory negligence is?

17  A             Yes.

18  Q             And so if there were a lawsuit,

19  there might be a decent chance that folks could

20  get it -- that there would not be any payment

21  because they would say that a barefoot person is

22  contributing -- is doing contributory negligence?

23                MR. DOLIN: Objection.

24                THE COURT: Sustained.


 1                MR. NEINAST: Okay. In that case,

 2  that's all I want from you. Thank you very much.

 3                THE COURT: Mr. Dolin?

 4                MR. DOLIN: Yes. Thank you.

 5                         - - -

 6                   CROSS-EXAMINATION

 7  BY MR. DOLIN: 

 8  Q             Good afternoon, Mr. Vandervoort.

 9  A             Good afternoon.

10  Q             Mr. Vandervoort, you indicated that

11  as a member of the Library Board, you have a

12  fiduciary duty; is that correct?

13  A             I believe that we are responsible

14  for maintaining an optimum operation for the

15  State and the County.

16  Q             And would that include conserving

17  the fiscal resources of the library?

18  A             Absolutely.

19  Q             And as part of your duty to

20  conserve the fiscal resources of the library,

21  would that entail rules that limit potential

22  liabilities for the library?

23  A             Absolutely.

24  Q             Was the rule requiring shoes to be


 1  worn one such rule that attempted to limit

 2  liability for the library?

 3  A             Absolutely.

 4  Q             All right. And as an attorney,

 5  you're aware, at least generally, of the fact

 6  that when lawsuits occur, those can pose a drain

 7  on the resources -- the financial resources of

 8  any organization; correct?

 9  A             It can cripple them or put them out

10  of business. As a matter of fact, merely filing,

11  being filed suit against, even though the suit is

12  without merit or there are defenses, you're

13  already in the bag because you start writing big

14  checks for defense.

15  Q             Correct. And there are times, for

16  example, when insurance doesn't cover.

17  A             Correct.

18  Q             All right. And claims can be made

19  by attorneys who represent injured clients where

20  the insurance company says "I'm not going to

21  cover you"; correct?

22  A             Correct.

23  Q             All right. And was part of the

24  intention of the library to avoid -- to enact


 1  these rules, was to avoid those types of claims?

 2  A             Absolutely. And if I was in on it,

 3  I would point out the possibility that you

 4  aggravate the possibility of foot injury by

 5  walking around barefoot.

 6  Q             All right. And common sense tells

 7  you that if you step on a tack with a shoe, with

 8  a sole under your foot, as opposed to a bare

 9  foot, you're more likely to be injured with a

10  bare foot; correct?

11  A             Absolutely. I've lost two

12  acquaintances to -- I can never think of it --

13  diabetic -- to diabetes because they didn't take

14  care of their feet and they lost legs.

15  Q             Mr. Vandervoort, I'm going to show

16  you what we've previously marked as Plaintiff's

17  -- I'm sorry -- Defendant's Exhibits A through H.

18  And I'll represent to you that there are some

19  photos of bathrooms. But as to the main -- as to

20  Exhibit A, do you recognize that area?

21  A             That looks like -- you know, that's

22  where you step into our lobby of our library.

23  Q             That's in the main Fairfield County

24  Library here in Lancaster; correct?


 1  A             Correct.

 2  Q             Okay. And just looking at Exhibit

 3  F, 9-F as in Frank, does that also appear to be

 4  the Fairfield County Library?

 5  A             Looks like it.

 6  Q             Okay.

 7  A             I think that's the basement.

 8  Q             Yes. Now, are you familiar with

 9  the men's rooms in the library?

10  A             Yes.

11  Q             Okay. And I'm showing you Exhibit

12  9-B. Does that appear to be the men's room of

13  the Fairfield Library?

14  A             Yes.

15  Q             And 9-C, does that appear to be the

16  stairwell in the library?

17  A             Yes.

18  Q             And 9-D, does that also appear to

19  be the men's room in the library?

20  A             Yes.

21  Q             9-E, does that appear to be a

22  carpet with a stain on it in the library?

23  A             I believe so.

24  Q             Was public safety -- let me say


 1  this: The Code of Conduct that was enacted by

 2  the library had rules other than the shoe rule;

 3  correct?

 4  A             I believe so.

 5  Q             Okay. And were those rules

 6  generally enacted for the health and safety of

 7  the patrons?

 8  A             Yes.

 9  Q             And were some of those rules also

10  enacted to preserve a safe location at the

11  library?

12  A             That's right.

13  Q             So, for example, showing you

14  Defendant's Exhibit No. 2, which is the 2007 Code

15  of Conduct from the library -- okay. And I'll

16  represent to you that this was enacted by the

17  Library Board. And do you see the rule about --

18  towards the bottom that shoes and shirts must be

19  worn in the library facility; correct?

20  A             Uh-huh.

21  Q             All right. Do you also see a rule

22  that says use of alcohol or illegal drugs is

23  prohibited?

24  A             I see that.


 1  Q             All right. And do you also see

 2  that smoking is banned in the library?

 3  A             Uh-huh.

 4  Q             Do you also see that running,

 5  shoving, fighting, spitting or throwing objects

 6  is prohibited? 

 7  A             I see that.

 8  Q             Was your intention as a Board

 9  member, and was it the Board's intention in

10  passing this, to impose a comprehensive Code of

11  Conduct for the health, safety and welfare of the

12  recipients -- of the patrons of the library?

13  A             Yes.

14  Q             And as far as you know, at all

15  times that these rules were adopted, was that the

16  purpose and intent -- or one of the purposes and

17  intents behind the Board's adoption of those

18  rules? 

19  A             Correct.

20                MR. DOLIN: Nothing further, Your

21  Honor. 

22                THE COURT: Mr. Neinast?

23                         - - -



 1                  REDIRECT EXAMINATION


 3  Q             You stated it was the duty of the

 4  Board to try to avoid claims, if they could, to

 5  avoid claims, and that this was a comprehensive

 6  safety sort of thing.

 7                If that's the case, why is there no

 8  rule banning high heels?

 9  A             Banning what?

10  Q             High heels.

11  A             Why is it relevant?

12  Q             Just as you're saying that there

13  could be a lawsuit based on somebody going

14  barefoot, there is -- there are many, many

15  situations -- we're all familiar with them, I

16  suspect -- common sense. Women wearing high

17  heels get their heels caught. There have been

18  lawsuits where heels have been caught. So that

19  if the library were to enact such a safety rule

20  only allowing heels up to a certain height or

21  something like that, that would help the library

22  avoid claims. It would be part of a

23  comprehensive -- whatever. Do you agree with

24  that?


 1  A             I think the average human mind is

 2  inadequate to prepare itself for eliminating all

 3  possible evils. We did the best we could. It

 4  might be a good suggestion.

 5  Q             Could it be the fact that you are

 6  so sure that bare feet are bad and that high

 7  heels are good, that you will only look at a rule

 8  for one and not the other?

 9  A             No.

10  Q             Explain, please.

11  A             It's not the fact. Had somebody --

12  I would have entertained the idea and thought

13  about it if anybody had mentioned it.

14  Q             Would you have extended it to other

15  footwear if dangers were pointed out for them?

16  A             I might have.

17  Q             Even to the point of excluding all

18  customers? 

19  A             You asked me if I would have looked

20  at it. I would have.

21  Q             You would have looked at it. Okay.

22                Well, would you look at excluding

23  all customers? If looking at all that meant

24  excluding all customers, would you look at that


 1  too?

 2                MR. DOLIN: I'm going to object,

 3  Your Honor. I think that's an argumentative

 4  question.

 5                THE COURT: Sustained.

 6  Q             Okay. Tell me what you understand

 7  by the State Code, what is it -- I've lost track

 8  of it -- the one that authorizes libraries, the

 9  proper operation and management of a library.

10  How much does that encompass, in your mind, as a

11  Library Board member, in terms of how much the

12  library can do in terms of ensuring safety,

13  things like high heel rules or whatever?

14  A             I think that's too broad to answer.

15  I would say, basically, everything is on the

16  table.

17  Q             Okay. So, then, if the library, in

18  its wisdom, decided that it wanted to enact a

19  rule that required that every person trying to

20  enter the library show that they had been

21  properly vaccinated, that would be within the

22  purview of the Library Board?

23  A             I would have looked at it. We

24  would have discussed it if somebody had presented


 1  it, and then we would have made a decision.

 2  Q             But you don't know whether that's

 3  part of proper operation and management of the

 4  library or not?

 5  A             Looking at the decision -- looking

 6  at the question might well be.

 7                MR. NEINAST: Okay. No further

 8  questions. 

 9                MR. DOLIN: Nothing further, Your

10  Honor. 

11                THE COURT: You may step down.

12  You're free to leave.

13                MR. VANDERVOORT: I'm free to

14  leave? 

15                THE COURT: Yes.

16                MR. VANDERVOORT: Thank you, Your

17  Honor. 

18                THE COURT: Thank you.

19  Mr. Neinast, do you want to call

20  your next witness, please?

21                MR. NEINAST: Is Mary Mesi here?

22                MR. DOLIN: I'll go outside and

23  check, if I may, Your Honor. I told her to be

24  here around 2:15.


 1                THE COURT: Okay.

 2                MR. DOLIN: Ms. Mesi is here.

 3                THE COURT: Are you calling this

 4  person as your witness?

 5                MR. NEINAST: Yes, I will.

 6                THE COURT: Okay.

 7                (Witness duly sworn.)

 8                         - - -

 9                       MARY MESI

10     being first duly sworn, testified as follows:

11                  DIRECT EXAMINATION


13  Q             If you would just state your name

14  and then spell your last name, please.

15  A             Sure. My name is Mary; middle name

16  is Jean; spelling my last, Mesi, M-e-s-i.

17  Q             I apologize. Mesi. Okay.

18  A             Yeah.

19  Q             You were present when I gave my

20  presentation to the Board?

21  A             Correct.

22  Q             Correct? Did I have on any

23  footwear? 

24  A             Yes.


 1  Q             What?

 2  A             Flip-flops.

 3  Q             Excellent. You could see my foot?

 4  A             Yes.

 5  Q             Could you see any more of my foot

 6  than if I were -- would you have seen any more of

 7  my foot if you (sic) were barefoot?

 8  A             Yes.

 9  Q             How much?

10  A             I would have seen the whole under-

11  sole of your foot.

12  Q             While I was standing there?

13  A             If you were barefoot.

14  Q             Okay. But I was standing there, so

15  it was on the ground.

16  A             Oh, when you were in a standing

17  position? 

18  Q             Okay.

19  A             I was thinking you sat. No. In a

20  standing position, I would have only seen the top

21  portion of it.

22  Q             Okay. Well, talking about the

23  bottom of the foot, since you suggested it.

24  Certainly, you know that flip-flops kind of


 1  separate. So you might have even seen my sole

 2  even with flip-flops.

 3  A             Yes, if you were walking.

 4  Q             Does that somehow violate decorum?

 5  A             No.

 6  Q             And so it didn't hurt the decorum

 7  of that whole thing? The meeting was not

 8  interrupted by decorum reasons ---

 9  A             No.

10  Q             --- for decorum reasons just by

11  seeing a bare foot? Okay.

12  After I left, did the Board discuss

13  my request?

14  A             Yes, we did.

15  Q             And can you tell me something about

16  that discussion, please?

17  A             The policy was reviewed at the time

18  and ---

19  Q             What does "reviewed" mean?

20  A             The policy prior to other Board

21  members. You know, we always review policy when

22  something is in question. And then we discussed

23  the fact that -- whether or not we -- how we

24  wanted to go with it. Everyone had an opinion


 1  based on it, how we wanted to proceed. And then

 2  a vote was taken. 

 3  Q             Not an official vote, though, in

 4  that meeting; correct?

 5  A             No, not in that meeting. Not that

 6  I can recall, no.

 7  Q             It's not in the meeting minutes,

 8  so--- 

 9  A             Okay. No, not in that meeting.

10                MR. DOLIN: Just so we're clear,

11  we're talking about the January meeting; is

12  that--- 

13                MR. NEINAST: No. We're talking in

14  -- on October 21st, I actually gave a

15  presentation before the Board.

16                MR. DOLIN: That's fine.

17                MR. NEINAST: I actually left you

18  folks so that -- you know, just to leave you

19  alone. 

20                MS. MESI: Right, exactly.

21                MR. NEINAST: And I was just asking

22  -- making sure I knew what went on after that.

23  Q             (By Mr. Neinast) And in this

24  meeting, the Board asked Ms. Steiner to contact


 1  Mr. Hart.

 2  A             Correct.

 3  Q             They did not ask for the -- sorry.

 4  Those are leading questions.

 5  Did the Board ask Ms. Steiner to

 6  contact the Fairfield County Health Department?

 7  A             I don't recall that. I don't

 8  recall that.

 9  Q             Okay. Did they ask Ms. Steiner to

10  contact an expert on safety, since that was a

11  concern in that meeting, that was brought up?

12  A             Yes, safety was an issue.

13  Q             You did not consult -- ask her to

14  consult an expert or talk to an expert?

15  A             I know -- I can't recall if it was

16  exact -- that exact meeting. But I know we did

17  speak at one point about having an expert brought

18  in. 

19  Q             Did you ever?

20  A             No, not to speak with the Board.

21  Just, from what I understand, what was relayed to

22  us as a Board.

23  Q             Okay. So then what did you hope to

24  get out of Mr. Hart?


 1  A             What did we hope to get out of Mr.

 2  Hart?

 3  Q             Right.

 4  A             Well, being the fact that --

 5  liability, liability where we stood.

 6  Q             So -- I don't want to put words in

 7  your mouth. You're saying, because of safety,

 8  you thought there might be liability, and

 9  therefore, he would be the one?

10  A             Well, there's always liability with

11  the library, you know. There's always liability.

12  Q             Okay.

13  A             And always making sure that our

14  policies are within -- you know, covering a large

15  -- encompasses everyone that attends the library,

16  and making sure that we stand legally where

17  liability is concerned.

18  Q             Okay. Before the meeting -- this

19  is one I'm pretty sure you did not attend. I had

20  gotten a letter from Ms. Steiner that said the

21  reason for maintaining the code was decorum, and

22  it mentioned nothing about safety.

23  A             Uh-huh,

24  Q             Were you folks looking for a legal


 1  excuse to keep a decorum rule for other reasons?

 2  A             No.

 3  Q             Okay. Ms. Steiner -- I sent an

 4  email to Ms. Steiner and it included a bunch of

 5  attachments about footwear safety ---

 6  A             Okay.

 7  Q             --- and actually footwear is

s actually quite dangerous, and included a list of

 9  lawsuits. You got a copy of that?

10  A             Yes.

11  Q             Okay. I think she said it was

12  emailed; is that correct?

13  A             Yes, it came through email.

14  Q             Did you look at the contents of

15  that email? 

16  A             Yes.

17  Q             Did you look at any of the papers

18  or any of the write-ups or anything like that?

19  A             I know there were quite a few

20  write-ups in there, and I did read through a lot

21  of it. 

22  Q             It was huge. It didn't convince

23  you at all?

24  A             No. Individually, are you asking


 1  me? No.

 2  Q             How about all together as one big

 3  chunk of data?

 4  A             No, not really. I guess, it has a

 5  little bit to do with my background. It has a

 6  little bit to do with knowing that I'm trying to

 7  always think, when we make policy, that something

 8  that encompasses the majority as a whole, you

 9  know.

10  Q             Okay. Could you tell me what your

11  background is?

12  A             Well, I have worked -- I'd studied

13  in the medical field; and then from there, I went

14  in and studied some dentistry and business. And

15  so I've seen foot injuries. I've seen foot

16  injuries and ---

17  Q             All of them from bare feet or also

18  shoes?

19  A             I had one myself from bare feet, so

20  I can attest to that. I had one myself from a

21  barefoot accident, so -- I guess that always

22  sticks with you when you know that.

23                But it has nothing to do with -- to

24  me, it's about the policy that -- you know, it's


 1  about liability for the library as a whole.

 2  Q             Okay. At some point -- when we got

 3  to the January and February meetings, the reason

 4  that it was stated: For maintaining the footwear

 5  policy was to, as much as possible, reduce and

 6  eliminate any risk which may potentially produce

 7  costly liability.

 8                Was there any discussion of the

 9  risk that high heels might also engender a

10  barefoot -- a change of the shoe rule to make

11  sure that high heels could not be worn by

12  patrons, to help protect the fiscal integrity of

13  the library?

14  A             No, not that I'm aware of.

15  Q             So you folks were really only

16  aiming at bare feet?

17                MR. DOLIN: I'll object to the term

18  "aiming."

19  Q             So the only thing that you

20  considered was bare feet in terms of eliminating

21  risks?  

22  A             As far as eliminating the liability

23  risk, we're only considering bare feet?

24  Q             Yeah. Yes.


 1  A             Let me think. Yeah, I guess so. I

 2  guess we would be only considering bare feet at

 3  that time, yes.

 4  Q             Okay. Or forever, for that matter.

 5  I noticed in the roll call vote,

 6  you abstained. Would you tell me why?

 7  A             I don't recall that.

 8  Q             We can show it to you, if you want.

 9  A             Yeah, I don't recall that. I

10  abstained from the vote?

11  Q             Your name is not listed -- let's

12  see. That would be -- I think that's -- this is

13  the February. That would be Defendant's No. 2, I

14  think.

15                MR. DOLIN: Exhibit 2. Is it 2?

16  Well, 2 is the policy itself.

17                MR. NEINAST: But I think the

18  meeting minutes are afterward or ---

19                MR. DOLIN: Hang on.

20                MR. NEINAST: No, I'm wrong. It's

21  No. 4.

22                MR. DOLIN: 4 are the meeting

23  minutes of February 17 of '09.

24                MR. NEINAST: Yes. Those are the


 1  ones.

 2  Q             (By Mr. Neinast) That would be on

 3  the third page -- oh, it's not in front of you.

 4  A             No.

 5  Q             Let me lend you this one.

 6  A             Okay.

 7  Q             It's right there.

 8  A             Under new business?

 9  Q             Right there it says: Roll call

10  vote: Mary Davis, aye; Orman Hall, aye.

11  A             I do know that I voted for it. I

12  don't know if this is an error in typing. I was

13  present at the meeting, so ---

14  Q             I was just going to ask you how you

15  would have voted if you had; but since you're

16  telling us how you actually did, that pretty much

17  answers that. 

18  A             Yeah.

19  Q             Okay.

20  A             Yes.

21                MR. NEINAST: Thank you.

22  That's really all I have, Your

23  Honor. 

24                THE COURT: Mr. Dolin?


 1                         - - -

 2                   CROSS-EXAMINATION

 3  BY MR. DOLIN: 

 4  Q             Good afternoon, Ms. Mesi. I

 5  apologize for getting the name wrong.

 6  I'm showing you the minutes that

 7  Mr. Neinast just discussed, Defendant's Exhibit

 8  4, the minutes of the Board Meeting of February

 9  17th, 2009. Okay?

10  A             Okay.

11  Q             You are listed as trustee -- one of

12  the trustees present at the top.

13  A             Okay.

14  Q             I can show you that.

15  A             Yes.

16  Q             When the vote came -- there's no

17  indication that you abstained, is that correct,

18  just that your name does not appear there at all?

19  A             Correct.

20  Q             Okay. So what's your -- what's

21  your best information as to that? Is that an

22  error in the minutes or did you leave?

23  A             Let's see. In 2009 -- okay. Let

24  me think here.


 1  I would state at this point, from

 2  the best of my knowledge, is that it was

 3  mistakenly left off.

 4  Q             Okay.

 5  A             It was an error in the minutes.

 6  Q             Okay. And you would have voted for

 7  it? 

 8  A             Yes, correct, I would have voted

 9  for it. 

10  Q             Okay. Now, when did you first get

11  on the Board? 

12  A             I want to say around 2003.

13  Q             Okay. And when did you become

14  chairperson of the Board?

15  A             Let's see. This is 2011. 2008. I

16  think 2008, 2009.

17  Q             Okay. So as part of the Board's

18  responsibilities, is the Board charged with

19  making policies to preserve the fiscal health and

20  integrity of the library?

21  A             Correct.

22  Q             And is the library flush with money

23  or is it on a tight budget?

24  A             Very tight budget.


 1  Q             All right. And is reducing or

 2  eliminating liability part of the concerns of the

 3  Library Board? 

 4  A             Yes.

 5  Q             And is that because, if a lawsuit

 6  is brought against the library, it could

 7  potentially result in a financial loss?

 8  A             Yes, most definitely.

 9  Q             Now, the purpose -- the rules that

10  were enacted in 2007 -- and this is Exhibit No.

11  2, Defendant's Exhibit No. 2 -- are entitled,

12  "Code of Conduct"; correct?

13  A             Correct.

14  Q             I think you may have that here.

15                This is my copy. And I've

16  highlighted a few items there.

17                Was this intended to be a

18  comprehensive Code of Conduct?

19  A             Yes.

20  Q             Were there rules in that Code of

21  Conduct that affected safety, other than the rule

22  requiring the wearing of shoes?

23  A             Most definitely.

24  Q             Okay. Can you give us a for


 1  instance?

 2  A             Shoving, running, fighting,

 3  throwing. If someone picks up a book and throws

 4  it at someone. I remember some incidents where

 5  we had issues with CD, teenagers trying to take

 6  CDs into the restroom, which, you know, you can't

 7  do anything about that public-wise, but putting

 8  them on top of their -- you know, taking them

 9  under their arms or tossing them at somebody and

10  putting them on top of their head and trying to

11  get it out the security system, you know, all

12  those kind of things. So they'd run, basically.

13  They would run.

14                You know -- let's see what else

15  here. You know, obviously, the shoes being worn

16  in the facility. You know, smoking, things like

17  that.

18  Q             So the shoe rule or the rule

19  requiring the wearing of shoes was part of a

20  comprehensive Code of Conduct; correct?

21  A             Yes.

22  Q             All right. Now, the -- and was

23  your concern to make a safe and usable facility

24  for the patrons of the library?


 1  A             Correct.

 2  Q             As well as preserving its fiscal

 3  integrity; correct?

 4  A             Yes.

 5  Q             Do you recall, in the enactment of

 6  any of these rules, where the safety and the

 7  financial responsibility of the library always

 8  factors in the adoption of this Code of Conduct?

 9  A             Yes.

10                MR. DOLIN: Thank you, Your Honor.

11                THE COURT: Mr. Neinast?

12                         - - -

13                  REDIRECT EXAMINATION


15  Q             We're just talking about reducing

16  liability, that's the purpose.

17  A             Uh -huh .

18  Q             And you could reduce liability by

19  banning high heels in the library; correct?

20  A             By banning high heels?

21  Q             By banning high heels in the

22  library; correct?

23  A             I would say no on that. My opinion

24  would be no.


 1  Q             That would not reduce liability?

 2  A             No.

 3  Q             You don't think somebody could trip

 4  on a -- there have been lawsuits where people sue

 5  where their heels get caught in rugs and stuff.

 6  A             That's true. That's true.

 7  Q             Okay. We had earlier testimony

 8  from an expert witness about MRSA and you can get

 9  cuts on your hand. Would it also -- could you

10  also reduce liability by requiring all customers

11  to wear gloves so as to prevent the possibility

12  of this MRSA being spread or being -- getting

13  into their cut in their hands?

14  A             Yes.

15  Q             Yes? So how is it that you only

16  think that liability needs to be reduced for bare

17  feet, but none of these other things?

18  A             Are you asking me personally ---

19  Q             Yes.

20  A             --- why I think that it's a

21  liability issue?

22  Q             We've already -- I guess it's

23  already been established that there is a chance

  of liability

24  for bare -- that there's a chance of


 1  liability for anything. You know, everything

 2  presents some sort of hazard. It could happen in

 3  the library, I assume.

 4  A             Uh-huh.

 5  Q             How is it that you're only -- of

 6  all these possibilities -- possible liabilities,

 7  how is it you guys are focusing only on bare feet

 8  and not on this myriad of others? Why is that

 9  one particularly important?

10  A             I think when the policy was made,

11  as I said before, it's to cover a majority. I

12  don't think it's just specifically bare feet.

13  It's running, spitting, jumping, pushing,

14  fighting, physically fighting in the library. As

15  far as whether or not they would spread MRSA on

16  -- I guess, with your bare feet, what you're

17  walking on.

18  Q             None of those are really

19  promulgated as a dress code, though.

20  A             But you're asking my opinion, Mr.

21  Neinast. With all due respect, you're asking my

22  opinion. And my opinion would be that if I were

23  to pick up a book and it has -- you know, the

24  odds of having MRSA on that book versus being


 1  MRSA on the floor, you're asking -- that's just

 2  -- you know.

 3  Q             Okay. Okay. So you haven't really

 4  looked into it too much, I guess; is that a fair

 5  statement? 

 6  A             No.

 7  Q             You haven't looked into MRSA much,

 8  though. 

 9  A             You're asking my opinion. You

10  didn't ask me to be an expert. You're just

11  asking my opinion. Okay?

12  Q             Right.

13  A             And what I do know of it, what we

14  carry in germs on the floor versus what you're

15  going to get off of a book, you know, with your

16  hands -- I mean, you run that risk when you're

17  holding onto this, obviously, with your hands. I

18  understand what you're saying.

19                It's just that if you're saying we

20  specifically went after bare feet, that's not the

21  case. 

22  Q             Okay.

23  A             We tried to enact a policy that

24  covers everyone, that's a majority.


 1  Q             But all the other rules that you

 2  have, none of the other of them -- most of them

 3  -- those all -- those all address conduct, not

 4  how one is dressed; is that correct? 

 5  A             How one is dressed? Well, no,

 6  because I'm pretty sure we have one for shirts.

 7  Q             Well, it's the same rule. 

 8  A             Okay. 

 9  Q             What's the danger on shirts, by the

10  way?

11  A             No shirt?

12  Q             Correct.

13  A             What would be the danger on no

14  shirt?

15  Q             If we're talking hazards. I mean,

16  this whole thing is being -- sorry. That would

17  be argumentative.

18                I'm still kind of learning this

19  thing, so I'm sorry.

20                What's the purpose of the shirt

21  rule?

22  A             It would go back to -- it would go

23  back to original policy, you know. I guess, it

24  would go to proper attire within a facility, you


 1  know.

 2  Q             Does that reduce liability at all?

 3  A             Not if we're speaking about a

 4  shirt, that I can think of, no.

 5  Q             Okay. Sc basically, you've got one

 6  rule that mixes decorum and liability both in one

 7  rule; is that correct? 

 8  A             I think that -- yes, I guess so.

 9  Q             Are you aware of the "no shirt, no

10  shoes, no service" type signs?

11  A             Yes, I've seen them.

12  Q             Okay. Do you know when those

13  originated?  

14                MR. DOLIN: Objection.

15                MR. NEINAST: Okay. I'll testify

16  to that.  

17  Okay. I'm done then.

18                MR. DOLIN: Nothing further, Your

19  Honor.  

20                THE COURT: Okay. You may step

21  down. You're free to leave.

22                MS. MESI: Thank you.

23                THE COURT: Mr. Neinast, your next

24  witness, please? 


 1                MR. NEINAST: Actually, if I could

 2  -- there's some stuff I neglected to ask Ms.

 3  Steiner when she was on cross. I do have her

 4  called as a witness. I think I can do it as

 5  direct and still get to it without being -- doing

 6  the wrong stuff. Okay?

 7                So I'd like to call Ms. Steiner

 8  back and just do it really quick.

 9                THE COURT: You're still under

10  oath. Same day here. You're still under oath.

11                MR. NEINAST: And I apologize.

12                THE COURT: That's fine.

13                I had indicated at the outset this

14  morning that you could do that, so ---

15                MR. NEINAST: Okay. Well, I'm

16  afraid I really need to.

17                         - - -

18                    MARILYN STEINER

19     being previously duly sworn, resumed the stand

20           and testified further as follows:

21                  DIRECT EXAMINATION


23  Q             Do we still have a copy of

24  Defendant's Exhibit No. 9? That's the list of


 1  all the unusual occurrences at the library.

 2  A             I'm sorry. I didn't bring it up

 3  with me.

 4                I have it. 

 5  Q             When you were being examined by Mr.

 6  Dolin, you made a statement that one of the ways

 7  you try to prevent injuries is by rule. Okay?

 8  That one of the purposes of rules is you're

 9  trying to reduce injuries; correct?

10  A             Sure. 

11  Q             Okay. If you'd look at Defendant's

12  Exhibit -- on this packet, there is labeled A

13  through S that he created. So if you'd look at

14  A, this is where the nine-year old patron fell

15  off a wooden step stool. 

16                Did you folks make any rule, based

17  upon this incident, to make the place safer?

18  A             I can't say -- again, this happened

19  -- I can't say specifically. I would -- in my

20  mind, I wasn't -- this was at the West Branch

21  Library in July of 1999. I don't have any direct

22  recollection, but I would think, at that point in

23  time, that that step stool would probably have

24  been put under a much more secure surveillance by


 1  the staff and not just been -- and, in fact, I

 2  believe we got rid of all of our wooden step

 3  stools at some point in time in lieu of the

 4  safety step stools that we use in the public

 5  library. So ---

 6  Q             But the library has no rule

 7  preventing patrons from getting onto step stools?

 8  A             We provide some safety stools where

 9  we have shelves that might require someone ---

10  Q             So you did not fix this problem by

11  rule. You fixed this problem by making -- by

12  trying to make the library safer; is that

13  correct?

14  A             We do our best to do that, yes.

15  Q             Okay. If you'd go to Exhibit C

16  now, or page C, or however you want to do it.

17                This is a patron caught her toe on

18  a door step as she entered the library.

19                Is there any rule that exists that

20  tries to prevent that particular injury?

21  A             I don't know what you mean by

22  preventing that kind of -- this sounds like an

23  accidental injury.

24  Q             Right. But she caught her toe.


 1  I'm assuming that means toe -- well, I don't

 2  know. If that were the toe of a sandal, would

 3  you maybe ban sandals because toes -- because

 4  there's the thing between sandals? If you guys

 5  knew more about this, okay, as to what kind of

 6  footwear, would you ban that kind of footwear?

 7  Not would you --- 

 8                The question is: There is no rule,

 9  correct, that would look at -- going back to the

10  original statement, that part of the reasons for

11  your rules is to be preventing injuries. So what

12  you've got here is an injury. No rule was

13  created to address this particular injury?

14  A             Not that I'm aware of.

15  Q             Okay. If you go up to K. So this

16  is -- somebody rode his bike up a ramp at a high

17  speed and bloodied his toe.

18                Is there any rule that has been

19  passed since then that would prohibit this?

20  A             We do have a rule that we do not

21  allow skateboarding and bicycling on the library

22  property.

23  Q             Okay.

24  A             Do the rules get broken? Yes, they


 1  do.

 2  Q             Okay. I already asked about the

 3  parking lot and that sort of stuff.

 4                And then let's go to S. That's the

 5  very last page. 

 6                This is a case that says when Mr.

 7  Redd entered the library, he tripped on the

 8  carpet. He fell and hit the door on his way

 9  down. 

10                Was any rule -- has any rule been

11  enacted to address that to see what kind of

12  footwear he was wearing to try to evaluate the

13  safety of that footwear, to see if maybe a rule

14  banning that footwear would make sense?

15  A             And it may not have been the

16  footwear as much as the carpet. It's hard to

17  tell. We have some mats in front of some of our

18  doors, which we have moved on occasion.

19  Q             But more shoes might be more ---

20  A             I don't know.

21  Q             --- liable to be caught or

22  something. 

23  A             I don't know.

24                MR. NEINAST: Okay. That's all I


 1  really wanted to do. So I'm done.

 2                THE COURT: Okay. Is there any---

 3                MR. DOLIN: No redirect, Your Honor

 4  -- or no cross, I should say.

 5                THE COURT: You may step down.

 6                MR. NEINAST: Thank you for getting

 7  back on the stand. I appreciate it.

 8                Okay. Now I'm going to call

 9  myself. 

10                THE COURT: Very well. You may

11  proceed. 

12                MR. NEINAST: A couple of things

13  preliminarily. I'd like to bring some notes up

14  with me. These are not notes of answers, but

15  notes to make sure I don't forget stuff that I

16  need to. I can show you those notes, if you'd

17  like, in advance.

18                THE COURT: That's fine.

19                Mr. Dolin, do you ---

20                MR. DOLIN: That's fine.

21                MR. NEINAST: Also, I don't know if

22  you want me to do this as a narrative, which I

23  know is frowned upon, or whether I should ask

24  myself the questions and then answer them. It's


 1  up to you.

 2                THE COURT: We'll do like we've

 3  done with the other witnesses. First, you can --

 4  no, you'll not ask yourself questions. But state

 5  your name, spell it, the last name, and then, I

 6  guess, go through in a logical order as much as

 7  you can. That's why I'm allowing you to take

 8  your notes. Hopefully, that will ---

 9                MR. NEINAST: Keep it briefer.

10                THE COURT: Well, no. It'll just

11  help it go smoother and you won't forget the

12  things you want to try to -- the points you want

13  to try to develop.

14                So since there's no one to ask you

15  questions, I'll permit you to talk.

16                MR. NEINAST: Do a narrative?

17                THE COURT: Yes.

18                MR. NEINAST: And I'm sure we can

19  count on opposing counsel if it gets too

20  narrative ---

21                THE COURT: Or if there's something

22  that Mr. Dolin feels is objectionable. And if

23  so, then we'll stop, and then I'll ask you your

24  response. I'll ask him why he's objecting and


 1  your response.

 2                MR. NEINAST: It's a lot easier

 3  without a jury too, is my understanding.

 4                THE COURT: Okay.

 5                         - - -

 6                     ROBERT NEINAST

 7     being first duly sworn, testified as follows:

 8                   DIRECT EXAMINATION

 9                MR. NEINAST: I've never done this

10  before, so ---

11                THE COURT: And if you would, state

12  your name, spell it, the last name, to make sure

13  we're got it correct.

14  Go ahead.

15                MR. NEINAST: Okay. My name is

16  Robert Neinast. The last name is spelled

17  N-e-i-n-a-s-t.

18                My background is that I have a

19  doctorate in physics. I used to work for Bell

20  Labs doing all sorts of thing.

21                I don't know how to say this. Our

22  whole household is an environment of learning,

23  and that I taught myself engineering when I

24  needed to. I taught myself queuing theory,


 1  coding, testing. I've also tried to teach myself

 2  this. I don't know how good I am at it, probably

 3  not much. Our house is filled with books. I

 4  really am a lover of libraries. Our bedroom

 5  alone has seven six-foot tall bookcases. There's

 6  probably another six in the rest of the house.

 7                My daughter is a librarian with an

 8  MLS. I really do love libraries. I like to go

 9  to libraries. Okay?

10                I have been barefooting -- I'm not

11  sure that's actually a word, but for barefooting,

12  that means going regularly barefoot as a part of

13  daily life. So when I use the word barefooting,

14  that's what I mean by that.

15                I've gone barefooting since

16  approximately 1996. I have gone barefooting in a

17  whole host of environments of one sort or

18  another. And I'll detail them further later, but

19  that would include stores, trails. I've gone

20  repelling barefooted, which is actually one of my

21  -- the talk I gave there. More than that, I tend

22  to consider myself a bit of an extreme barefooter

23  in that I like to try testing to see where the

24  limits of using bare feet is. So I've done that


 1  hiking. I want to make sure I get that in.

 2                I have hiked -- I started keeping

 3  track in 2006, which is like ten years after I

 4  first started. From 2006 until two days ago, it

 5  was slightly over 1,300 miles that I have hiked.

 6  Some of that is -- most of that is in

 7  southeastern Ohio, Hocking Hills, Clearcreek

 8  Metro Park, Tar Hollow, Scioto Trails -- no,

 9  sorry -- Great Seal State Parks. I've also hiked

10  in Yellowstone. I've also hiked at the Bad Lands

11  of South Dakota, a canyon in California just

12  outside of Los Angeles, the mountains of

13  Virginia, you name it.

14                I also like to test myself in terms

15  of cold and I've actually discovered that -- I

16  mean, there are scientific papers that talk about

17  something called CIVD, cold-induced vasodilation.

18  And it's actually confirmed that I will generally

19  go off hiking. As long as the temperature is

20  above freezing, I'm perfectly comfortable doing

21  so. So it's interesting to find that out.

22                I have gone on the Hocking Hills

23  mid-winter hike that's always done around January

24  20th. I have done that three times. Two of


 1  those times, there was still snow on the ground.

 2  I have included things on streets, stores,

 3  repelling. I also play tennis barefoot.

 4  So that's a background as to what I

 5                know about barefooting.

 6                What I'd like to do next is try to

 7  authenticate some of the things in the back, from

 8  early exhibits, just to make sure I covered all

 9  that.

10                I first want to say that I did go

11  to the Baltimore Library on November 26th of '07.

12  I got my library card at that time. I then went

13  and checked out a book. It was actually, if I

14  remember correctly, on Tecumseh. Maybe it wasn't

15  that one. I went back -- anyways, I did go back

16  on December 12th, '07, again. Nobody said

17  anything to me. I noticed no disruptions. I

18  noticed there were no riots breaking out.

19  Obviously, that's an exaggeration, but nobody

20  seemed to notice and/or care. I think that's

21  when I got the Tecumseh one.

22                I went to the main library on April

23  10th of '08 and checked out a couple of books,

24  and then I went again on April 23rd of '08. At


 1  that point, in fact, what I was doing there was

 2  the Fairfield County Library has a book on the

 3  geology of Fairfield County that is in their

 4  reference section. I could not find a copy

 5  anywhere else. I mentioned I really like

 6  learning. There's geology. I can tell you weird

 7  stuff about black hand sandstone and where Kettle

 8  Hill Cave is and all that sort of stuff.

 9                So I was actually looking at that

10  book as a reference section at the time that I

11  was approached -- very politely, by the way -- by

12  the librarian that was working there, and asked

13  to leave. So I was in the library on all those

14  instances.

15                I'd also like to describe the

16  footwear injury cases. I produced that document.

17  I did so using two different law search

18  possibilities, one of which is Versus Law. It's

19  kind of cheap, but I have a subscription that I

20  can afford. The other one was LexisNexis at the

21  Columbus Law Library that I looked up these

22  cases. I basically did the searches --

23  obviously, barefoot is an easy search to do,

24  because you can get that -- that really fines


 1  out. But if you're trying to find ones involving

 2  shoes, you have to do various combinations and

 3  stuff. But just trying to find out what kind of

 4  problems there were, what kind of lawsuits there

 5  were. So I used that to try to give them an

 6  indication of the fact that bare feet are not the

 7  only liability.

 8                I did go through and reseach each

 9  opinion that I found. Most of them are only

10  appellate level decisions, because that's all

11  that's available. So these are just the ones.

12  So it was just a snapshot. And the intent is,

13  bare feet are not the only types of footwear --

14  if you want to call it that -- for which there is

15  a risk of financial liability or anything like

16  that.

17                Let's see. We actually skipped

18  this, but I still want to mention it. In October

19  of 2009, I participated in something called the

20  Walk With the Ancients. This was a walk with a

21  bunch of Native Americans from the mounds down in

22  Chillicothe up to the mounds -- up to the octagon

23  mound in Newark. This was a 70-mile walk, hike.

24  There were a lot of Native Americans and all


 1  sorts of other folks. It was 70 miles in seven

 2  days. I did it without any injury. And as a

 3  matter of fact, I should mention, at one point,

 4  there was glass sitting on the road where a

 5  bottle had been crushed. And since glass is what

 6  everybody is totally paranoid about, I walked up

 7  to it. I said, "Ooh, better look out for the

 8  glass. A barefoot person might step on it." And

 9  I stepped on it and kind of crushed it, whatever,

10  and then continued walking without any difficulty

11  at all. So, no injury.

12                I've had no injury on the hike to

13  my bare feet. This is 70 miles over country

14  roads, city roads, sometimes -- in Newark, I have

15  to admit, I was getting a little bit foot sore.

16  So instead of walking on the road, I was walking

17  in the grass next to -- if you know where Route -

18  - I forget the name of the big route that goes

19  through Heath and Newark, but it's a big, four-

20  lane highway. And so, I'm on the grassy shoulder

21  of that where who knows what's in there. No

22  injury yet again. Okay?

23                I also -- on roads and stuff, I

24  already mentioned, I did the Walk with Joe in


 1  2006 and 2007. That's with Joe Blundo. And yes,

 2  I did get the tee-shirt. It was a nine-mile walk

 3  and I did this twice. This is just on concrete.

 4  But concrete, once again, I pulled the trick

 5  about, "Oh, there's glass. We'd better look

 6  out." And then I deliberately stepped on it just

 7  to freak out the people around me, because I knew

 8  I wasn't going to get hurt.

 9                Quite frankly, I tend to step on

10  glass a lot when there's an audience. So --

11  okay. I know I'll get cross-examined on that.

12                I play tennis barefoot, have been

13  doing so since about -- I think it's '03 or '04.

14  I actually don't recall. To tell you the truth,

15  initially, it didn't even strike me too much that

16  I could play tennis barefoot, but when I play

17  tennis with shoes on, I've got the little bit,

18  back then, forming of a bunion, and it was

19  painful. And for two days after playing tennis

20  -- and in tennis, you know, you're kind of moving

21  your feet boom, boom, boom. For two days

22  afterward, my toe really, really hurt. Since

23  then, I just play.

24                During the summertime, I play up to


 1  five hours per week on an outdoor court in the

 2  sun. And actually, outdoor courts tend to have a

 3  slightly rougher surface than indoor courts.

 4  During the rest of the season, spring -- I'm

 5  sorry -- fall, winter, spring, I play on an

 6  indoor court, which is actually a little bit

 7  smoother and friendlier to play on. That I do

 8  two weeks -- I'm sorry -- two hours per week,

 9  generally.

10                I use bathrooms barefooted. I have

11  used bathrooms barefooted from the word go. The

12  skin on the bottom of a foot, as Dr. Landers

13  said, as long as it's in tact, you're okay. I'm

14  perfectly well aware of when I do or do not have

15  something on the bottom of my foot. And yes,

16  sometimes I do get foot injuries and I will

17  discuss that more later.

18                I kind of mentioned this earlier,

19  but I want to bring it up again. In February a

20  year ago, my mother broke her ankle. She went

21  into surgery. I went to the emergency room with

22  her barefoot. None of the doctors were

23  concerned. They did not say a thing to me about

24  being barefoot.


 1                I mentioned that I mother then got

 2  MRSA. As part of that, she was referred by her

 3  orthopedist, who was Dr. Gorslein (phonetic), to

 4  a Dr. Jan Smith. He's an infection specialist on

 5  Bryden Road in downtown Columbus. I took her

 6  there to see Dr. Smith three times, and each

 7  time, I was barefoot. I was obviously barefoot.

 8  I mean, he was looking at the floor to look at my

 9  mother's ankle. I can't say for sure that he saw

10  my feet -- yeah, actually, I can, because I know

11  he looked. I remember that he looked at them.

12  He never said I shouldn't be in here like that,

13  that there was any problem, whatever. This is an

14  infection specialist doctor.

15                It's also the case that because of

16  the infection, and ankles get very poor blood

17  flow, and she had arteries that were clogged. We

18  were also referred to an orthopedist, Dr.

19  Kuntzman (phonetic). So I went to his office

20  with her at least three times. It may have been

21  four, I don't recall. I should have looked at my

22  notes I keep on that. He never said anything

23  about the fact that I was barefoot, that I should

24  not be there. I actually visited my mom in the


 1  hospital when she had first an angiogram, then

 2  she had an angioplasty. Okay? There actually

 3  was a little bit of a (inaudible) where one of

 4  the nurses -- not one of the doctors, one of the

 5  nurses somehow thought bare feet would be a

 6  problem and wanted me to put on those little

 7  footie things.. I tried to tell her that a lot of

 8  that stuff is going to be absorbed right into it,

 9  but anyways, she did get upset.

10                Then, let's see, you know what, I

11  forget what the other reason -- at some other

12  point -- that might have been the angiogram, and

13  then the angioplasty itself was not at Mount

14  Carmel East -- the angiogram was at Mount Carmel

15  East. The angioplasty was at Mount Carmel West.

16                Once again, I was barefoot. The

17  nurses asked me about it, but none of them told

18  me I couldn't do it. However, while I was

19  waiting for mother, my mother, I was approached

20  by a guard about the bare feet. And I later

21  found out that they are instructed not to allow

22  bare feet there, but that's hearsay.

23                When I talked to him, what he did

24  was, he wrote down my name and my address just so


 1  that in case I decided to hurt my -- you know,

 2  did get hurt, that they could then say that they

 3  had warned me, and then, thereby, that would

 4  preclude any lawsuit -- or at least, any

 5  reasonable lawsuit in the least for that.

 6                He also -- I gave him what you guys

 7  have heard a lot, my standard high heels line,

 8  and he did tell me that yes, they get high heel

 9  injuries there. But that's hearsay also.

10                I would like to consider myself an

11  expert in going barefooted. Very few people do

12  it any more and know anything about it. Just

13  from my point of view, listening to the witnesses

14  talk about how scary it is, it's like if you

15  don't do it, you're not going to know anything

16  about it and you're going to draw false

17  conclusions. I know what does and does not

18  injure bare feet. In over 1,300 miles -- that's

19  just including the hiking stuff. It does not

20  include all my time in stores or other places.

21                I already mentioned that I've hiked

22  over 1,300 miles since 2006 and many miles before

23  that. I have been in the following stores,

24  sometimes multiple times: Krogers. When I


 1  retired back in 2001, my wife went back to work

 2  and I stayed home and stayed with the children,

 3  took care of the children. So I've been doing

 4  weekly shopping at my local Krogers barefooted

 5  since that time. Galyan's, back before they

 6  left; Best Buy; Gander Mountain; Meijer's; Dicks;

 7  Staples. Staples, I use continuously. That's

 8  where I photocopied all this stuff, okay, for

 9  today, to the point where they tried to give me

10  one of their golden membership things to the

11  point where they knew whatever -- however much

12  money I spent there, I got this thing from the

13  manager saying how great it was to have me as a

14  customer. I don't know if that just goes out to

15  everybody or whatever, but I can say when I go

16  into Staples, many of the people recognize me.

17  That's how often I go there.

18                Office Max -- since they opened the

19  Staples, Office Max not so much. The Anderson's

20  General Store, all the time. As a matter of

21  fact, with the Anderson's General Store, they had

22  a "no shirt, no shoes, no service" sign. This

23  was back in -- oh, gee, I should have looked this

24  up -- I think it's like 2002. I wrote to the


 1  president. He sent an email to me that he

 2  consulted with his lawyers and said, "You're

 3  welcome to come into our store." Next time I

 4  showed up there, which was two days later, I was

 5  greeted by name by their greeter and welcomed to

 6  the store.  

 7                I've gone on the Santa Maria, even

 8  with the wood that folks might think is

 9  splintery, but it's not. CVS -- CVS is our main

10  -- the main drugstore we use. If you look at a

11  CVS, you'll see it's got a little sign down there

12  saying basically -- what the sign actually says

13  is, "No bare feet by order of the Department of

14  Health," which we know is not true. And that's,

15  I think, how "no shirt, no shoes, no service" has

16  been promulgated for quite a long time. And then

17  if you see -- from what I can tell talking to

18  folks, they see the sign, particularly when it

19  says Health Department, and they think there

20  really is a reason not to allow bare feet. And I

21  think we've seen that today, even though ---

22                MR. DOLIN: I'll object to what

23  other people are thinking, Your Honor.

24                THE COURT: Sustained.


 1                MR. NEINAST: Let's see, where was

 2  I? Walgreens -- CVS is the main one we go in.

 3  The last time I was there was like three or four

 4  days ago. Walgreens, which I actually like

 5  somewhat better. Sears Hardware Store, Lowes,

 6  Home Depot, McDonald's, Wendy's, Burger King,

 7  Olive Garden, various other restaurants like

 8  Vagotta (phonetic) Grill. I go in Barnes &

 9  Noble, Tumbleweed restaurant. Fado Irish Pub

10  that's actually in Easton, I was just there a

11  couple of days ago. I've been probably in there

12  six or seven or eight times. One time I got

13  confronted by one of the waiters.

14                "You can't be in here barefoot."

15                "Why not?"

16                "Health code."

17                I have to carry a letter with me

18  because people are so misinformed. I pulled out

19  the letter. Actually, I had a letter from --

20  let's see, the letter I had -- I had three

21  letters, one from the Ohio Department of Health,

22  the Franklin County Health Department, and the

23  Columbus Health Department.

24                And he goes, "Enough, enough."


 1                He let me stay.

 2                Bunch of other restaurants.

 3                Not only that, I've been in the

 4  following public buildings. By public, I mean

 5  governmental of one sort or another. The State

 6  House. By the way, the tile is exquisite to

 7  feel. The Franklin County Courthouse; the

 8  Kinneary Federal Courthouse in Columbus; the

 9  Stewart Federal Courthouse in Cincinnati; the

10  Columbus Police Department building; right here

11  in this Hall of Justice, as I'm sure you've

12  noticed sometimes when I've dropped off documents

13  and headed towards your office; the Ohio

14  Historical Society; DMV offices; Port Columbus;

15  Houston International Airport; Atlanta Hartsford

16  Airport; Sarasota/Bradenton Airport; LAX; the

17  Smithsonian; US Capitol Building; the Chicago

18  Field Museum. Okay?

19                I have never been injured in any

20  way, in any sort of building open to the public,

21  at least not when I was barefooted. Okay?

22                I would, though, like to talk about

23  two related injuries. The first one within the

24  Ohio Supreme Court Library. I had been using


 1  that barefoot to prepare the case that we talked

 2  about before, the Columbus Metro Library thing.

 3  Excellent law library, of course. I used it

 4  pretty continuously, pretty often.

 5                But I made the mistake of talking

 6  to the Director of the Library, asking her if

 7  they would fill out an affidavit for me stating

 8  that they had no rule prohibiting bare feet in

 9  the library, which they did not, which I

10  verified, stating that and that I have caused no

11  problems in the library.

12                It turns out that I had forgotten

13  to xerox one thing I did, so I actually came back

14  later the same day. I was met by a fellow named

15  Jim Porter, who is like the assistant building --

16  or Supreme Court library person. And so at that

17  point on, I had to wear footwear. He just said,

18  "You can't do it," even though there is no rule.

19  And if you go on the Supreme Court website and

20  look at the rules for using the Supreme Court

21  building or library, there still is no barefoot

22  rule. He just would not allow it because ---

23                What he told me was ---

24                MR. DOLIN: Objection.


 1                THE COURT: Sustained. You can't

 2  say what somebody else said.

 3                MR. NEINAST: Right.

 4                I am not offering it for proof that

 5  this was the actual reason. I am offering it to

 6  show what I heard and the sort of excuses that

 7  people will make.

 8                THE COURT: I'll allow you to

 9  proffer it, but it's not going to be considered

10  as evidence.

11                Go ahead.

12                MR. NEINAST: Okay. He told me if

13  he let me in barefoot, no shoes, he'd have to let

14  topless women in, no shirt. Because I don't know

15  if you're aware that toplessness is not illegal

16  in Ohio the way the code is written. And there's

17  been court cases on that.

18                MR. DOLIN: Renew my objection to

19  that.

20                THE COURT: Okay. That's all part

21  of the proffer. Thank you.

22                MR. NEINAST: Okay. Okay.

23                Thank you for just letting me say

24  that, because it's such a funny story. I can't


 1  help myself.

 2                I went back, from then on, wearing

 3  flip-flops. In October 23, I went to turn. My

 4  foot actually got caught on my flip-flop. It did

 5  not work the way I was used to having bare feet

 6  work or whatever, and I shattered the cartilage

 7  in my knee. I ended up having to have MRIs,

 8  which are very expensive. I had to go through

 9  physical therapy. I can't prove that it was

10  caused by wearing the shoes, but it sure felt

11  like it. So in my case, wearing shoes is not

12  good for me.

13                In Kroger, two things in there I

14  want to mention. First of all, I have injured

15  myself in Kroger. I've cut my finger on one of

16  those little coupon dispensers, so maybe I should

17  have been wearing gloves.

18                But another case that I want to

19  bring up in terms of folks not necessarily

20  thinking that bare feet are not the anathema that

21  folks might think. In the other Kroger, I was

22  there one time and I was walking down the aisle

23  and there was a puddle there that was impossible

24  to see. I stepped in the puddle and I


 1  immediately felt it. So even though you can't

 2  see the puddle, you can feel it as soon as you

 3  step on it if you are barefoot.

 4                I immediately notified Kroger

 5  employees so they could go, then, and clean it up

 6  so that some other shod person did not slip on

 7  this wet puddle. Okay?

 8                I've mentioned that I've gone to

 9  the Field Museum in Chicago. And it was

10  interesting there. They didn't want to let me

11  in, even though they had the usual sorts of

12  mission statements, the grandiose mission

13  statements of how great they are, just like the

14  library says, we have commitments to this and

15  whatever. And while they allowed me to stay out

16  in the -- we actually had to wait for some people

17  that were standing outside of the actual entrance

18  gate, but it was still inside the building. They

19  wouldn't let me through the gateway, though. I

20  had to talk to them. 

21                And basically, I ended up talking

22  with him for a long, long time. And finally,

23  what I said was, "You know---"

24                He gave me the usual danger stuff.


 1                I said, "It's a museum. It's clean

 2  inside."

 3                MR. DOLIN: Objection.

 4                THE COURT: Sustained.

 5                MR. NEINAST: I was eventually

 6  allowed to stay. Let me just end up there.

 7                Glass, in particular, is not the

 8  hazard that folks think it is. For instance, one

 9  of the places I hike is Flint Ridge. I don't

10  know if anybody here has been to Flint Ridge, but

11  it's where Native Americans used to mine flint.

12  And if you all know, flint is what you make arrow

13  heads out of. They are very sharp. They're

14  whatever.

15                Admittedly, when flint is outside,

16  or glass, for that matter, for any length of

17  time, it tends to weather and not be as sharp as

18  it otherwise would. But I have hiked all over

19  Flint Ridge in my bare feet without ever getting

20  an injury.

21                Your Honor, I don't know if you

22  want this or not. I have brought with me some

23  glass. And if you think it'll make any

24  difference, I can put it on your carpet and I can


 1  walk across it for you. I can break it with my

 2  feet. As a matter of fact, last night preparing

 3  for this -- was it last night -- I took an old

 4  beer bottle, went out to the garage, hit it with

 5  a hammer, and some of the pieces on the floor, I

 6  just deliberately stepped on it. okay?

 7                You can look at my feet. My feet

 8  are perfectly fine right now. I broke it into

 9  further pieces. Sometimes, you know, it was kind

10  of curved. I did it a few times when the curve

11  is faced up, sometimes when the curve is faced

12  down. Okay? I then cleaned it up, collected a

13  few pieces to bring with me today, and then

14  cleaned the stuff up.

15                I noticed this morning coming to

16  the car, I left a few pieces behind. I don't

17  know if I stepped on any of those, because they

18  were kind of small. But glass, while, of course,

19  it can injure you, and in certain situations,

20  they're more likely to and less likely, that, as

21  far as I'm concerned from my experience, is over-

22  exaggerated fear, because people that I talk to

23  seem to think that they see "no shirt, no shoes,

24  no service," there must be a reason and that must


 1  be it.

 2                That's it for me.

 3                THE COURT: Thank you.

 4  Mr. Dolin?

 5                MR. DOLIN: Thank you, Your Honor.

 6                         - - -

 7                   CROSS-EXAMINATION

 8  BY MR. DOLIN: 

 9  Q             Mr. Neinast, where -- is it Neinast

10  or Neinast? Have I been mispronouncing it?

11  A             I think the original German was

12  more Neinast, but somehow, that always got me

13  teased in high school. So we kind of modified it

14  to Neinast. 

15  Q             Neinast. Okay.

16  A             Yeah.

17  Q             Where did you get your PhD?

18  A             University of Illinois.

19  Q             And what year?

20  A             1980.

21  Q             What was it in?

22  A             Theoretical quantum physics.

23  Q             And are you employed now?

24  A             No, I am not.


 1  Q             When was the last time you were

 2  employed?

 3  A             2001.

 4  Q             And what kind of work did you do?

 5  A             I used to work for Bell Labs.

 6  And---

 7  Q             In Columbus?

 8  A             Yes. I actually -- when I got out

 9  of school, I first went out to Homedale, New

10  Jersey, which is along the Jersey shore. I was

11  there for eight years. once my daughter was

12  born, my wife and I didn't really want to raise

13  anybody out there, because we're midwesterners at

14  heart, so we came back to -- we came to Columbus.

15  And I continued working for Bell Labs there. I

16  managed to get an internal transfer. That's back

17  when companies still did that sort of thing as

18  opposed to just firing an employee.

19                In Columbus -- back in Homedale, I

20  did system engineering. I actually did the

21  queuing theory, wrote programs that implemented

22  stuff for call centers.

23                Do you want an explanation of that

24  or not?


 1  Q             I really don't need -- well, let me

 2  ask you: Have you been retired? You mentioned

 3  that you are retired.

 4  A             That is correct.

 5  Q             Since 2001?

 6  A             Correct.

 7  Q             Okay. And so did you retire from

 8  Bell Labs? 

 9  A             Yes, I did retire from Bell Labs.

10  Q             Okay. So do you have any

11  employment now?

12  A             No, I do not.

13  Q             Okay. Do you get a pension from

14  Bell Labs? 

15  A             I get a pension from Bell Labs.

16  Q             Okay.

17  A             And access to healthcare, though

18  we've mainly been using my wife's, because it's

19  cheaper. 

20  Q             Okay. Now, you don't -- would it

21  be fair to say, Mr. Neinast, that you don't have

22  any medical training; is that correct?

23  A             That is correct.

24  Q             And you're not trained in public


 1  health; is that correct?

 2  A             That is correct.

 3  Q             And you're not trained in

 4  epidemiology; is that correct?

 5  A             That is correct.

 6  Q             And you have no training or

 7  expertise in MRSA; correct?

 8  A             That is correct.

 9                MR. NEINAST: Could I interrupt

10  things for just a minute? If I'm going to have

11  to, then, redirect, I don't have any pens with me

12  to take notes as I could. Is it okay if I go---

13                THE COURT: Yes.

14                MR. NEINAST: Thank you.

15  Q             Would it be fair to say that you

16  don't have any training or expertise in pathogens

17  that are carried in public places?

18                MR. NEINAST: Objection. That's

19  two questions in one. You asked about training

20  and expertise.

21                THE COURT: Mr. Dolin?

22  Q             Do you have any training in

23  pathogens?

24  A             No formal training.


 1  Q             Okay. Do you have any expertise?

 2  A             I think that I have acquired some

 3  expertise from the extensive reading that I have

 4  done. 

 5  Q             Okay.

 6  A             But no ---

 7  Q             But it's self-taught?

 8  A             Nothing formal.

 9  Q             You have no degrees in any of these

10  areas that - --

11  A             The only degrees I have are in

12  physics. 

13  Q             Okay.

14  A             Well, and in high school.

15  Q             Do you dispute the accuracy of any

16  of the evidence that was given by Professor

17  Landers? 

18  A             No. I thought he pretty well

19  covered it. I mean ---

20  Q             And do you dispute that humans can

21  catch the MRSA infection through breaches in

22  their skin? 

23  A             I agree that that is true.

24  Q             And that would include breaches --


 1  or cuts, lesions in the bottom of the foot;

 2  correct?

 3  A             Also on hands, yes.

 4  Q             And hands, yes.

 5  And similarly, do you dispute that

 6  there are other infections that humans can catch

 7  through breaches in the bottom of the foot

 8  besides MRSA? 

 9  A             That's true.

10  Q             And ---

11  A             Tetanus is a good example.

12  Q             I'm sorry?

13  A             Tetanus is a good example. That's

14  the reason we get vaccinated.

15  Q             And I assume you would agree that

16  when library staff has to treat injured patrons,

17  that diverts them from their general library

18  duties? Would you agree with that?

19  A             That's assuming that there's any

20  reasonable probability that that would occur.

21  Q             Any kind of injury. Any kind of

22  injury. 

23  A             That's true.

24  Q             Now, your lawsuit asserts that the


 1  rule requiring footwear is illegal; correct?

 2  A             That is correct.

 3  Q             Okay. And if this library's

 4  footwear rule is declared illegal, which is as

 5  you request -- that's what you want; right?

 6  A             It's ultra virus.

 7  Q             Right. Then all users of the

 8  library would be able to walk in the library

 9  barefoot; correct?

10  A             That is true.

11  Q             Okay. And that would include

12  adults; correct?

13  A             Since it would include me, and I'm

14  an adult, yes.

15  Q             Okay. Diabetics?

16  A             Yes.

17  Q             Teenagers?

18  A             Yes.

19  Q             Small children?

20  A             Yes.

21  Q             Toddlers?

22  A             Yes. Though, I'd just point out,

23  if there's a particular risk category, that it

24  might make sense, if it actually is a documented


 1  risk---

 2  Q             I'm sorry. I didn't quite

 3  understand that answer.

 4  A             If there's actually a documented --

 5  if there's actually documented high risks for

 6  diabetics, for instance. So the library could

 7  limit their rule to something reasonable as to

 8  make it -- instead of making a blanket ban of

 9  hitting everybody to accommodate the infirmities

10  of a few.

11                I don't know -- for instance -- for

12  instance, the library does not make a rule saying

13  that everybody has to take an elevator, because a

14  person with a heart condition walking up the

15  stairs might get a heart attack and then somehow,

16  they might -- there might be a liability. They'd

17  have to do all this, spend all this money to deal

18  with this guy having a heart attack.

19                To me, it seems pretty ridiculous

20  to make a rule for the infirmities of some

21  people. You could maybe accommodate them, but

22  certainly a rule that prohibits somebody -- say,

23  somebody with coronary artery disease, from using

24  the stairs, that's something that they know


 1  themselves.

 2                Let -- I don't see why the person

 3  cannot be the one that decides their own risks.

 4  In fact, that's the way it's always been in the

 5  law until -- certainly, through the '70s.

 6  Q             Would it be fair to say, then, you

 7  would want people to be able to have barefoot

 8  access to all the public areas of the library;

 9  correct?

10  A             Just like I have public access to

11  all these other buildings I go into and none of

12  them seem to have a problem.

13  Q             And that would include restroom

14  areas as well; correct? In fact, you testified

15  about that.

16  A             Sure. I wouldn't -- I do know -- I

17  don't know how much I know, but there's the "ick"

18  factor with that, so I would be really surprised

19  if most folks would do that. But ---

20  Q             Do you assume that everyone who

21  walks barefoot will have the experience that you

22  have walking barefoot?

23  A             No.

24  Q             Do you assume that everyone who


 1  walks barefoot will be careful when they walk

 2  barefoot?

 3  A             Not everybody, but I think a pretty

 4  good proportion would.

 5  Q             But a sizeable chunk would not;

 6  correct?

 7  A             No. A sizeable chunk would be

 8  aware.  

 9  Q             Well, okay. You've had teenagers?

10  A             Yes, as a matter of fact. They go

11  barefoot hiking with me. 

12  Q             Now, the areas in the library that

13  you would want, essentially would be all the

14  floors and all the restrooms and all the public

15  areas; correct?

16  A             Right.

17  Q             Okay. Now, I assume that you

18  acknowledge that sometimes in public restrooms,

19  bodily fluids find their way onto the floor; is

20  that correct?

21  A             That is correct.

22  Q             Okay. That could include blood;

23  correct?

24  A             That is correct.


 1  Q             That could include feces; is that

 2  correct?

 3  A             That is correct.

 4  Q             And that could include urine?

 5  A             That is correct.

 6  Q             Right? And would you also agree

 7  that those items, vomit, blood, feces, include

 8  pathogens?

 9  A             They can.

10  Q             All right. And would you also

11  agree that if one had a cut or a lesion on the

12  bottom of one's foot, that those pathogens could

13  enter and cause an infection?

14  A             Just like if one had a cut on the

15  hand and there could be feces on the mirror or

16  various other sorts of locations. If you flush

17  the toilet, there's probably E.coli all over the

18  place, just on the flusher. So if you have it on

19  your -- a cut on your thumb and you flush it,

20  it's going to do the same thing. It's the same

21  sort of thing.

22                Basically, the question is whether

23  we are responsible for ourselves or whether the

24  State is responsible for us.


 1  Q             Do you think the State has any role

 2  in protecting people?

 3  A             From what I -- from my

 4  understanding, you can't protect people from

 5  themselves. That has never been considered part

 6  of the police power.

 7  Q             Well, let me ask you something. Do

 8  you think the State is within its rights to

 9  compel people to wear seatbelts?

10  A             I've read a lot of court cases on

11  that. Every time ---

12  Q             Well, I'm asking your opinion.

13  What's your opinion? Do you think the State is

14  within its rights to compel people to wear

15  seatbelts?

16  A             Yes, because it's not only

17  protecting the person, but it's protecting the

18  others around them. As they say, as I've seen

19  what happens is ---

20                There's two reasons why I think

21  seatbelt laws are justified. First of all, if

22  you aren't wearing a seatbelt and are getting in

23  an accident or whatever, you can lose control of

24  your car if you're being thrown around the


 1  vehicle. That can affect the people next to you.

 2  That can affect folks in other vehicles if you

 3  cannot control you car to try to avoid an

 4  accident.

 5                I think the State also has an

 6  interest in the fact that what happens in auto

 7  accidents requires massive resources to clean up.

 8  Hospital bills. We're not talking about somebody

 9  stepping on a staple and requiring a 20-cent

10  bandage.

11  Q             Or maybe a crash that causes ten

12  stitches.

13  A             Even then, that's not much of a --

14  it's no imposition on the State that I can tell

15  -- or at least until we get universal heath --

16  you know universal healthcare kicks in. That's

17  nowhere near the sort of thing of a car accident

18  where people are actually killed, where people

19  are killing other people, and other people get

20  killed, there's massive ambulance runs, any of

21  that sort of stuff.

22                From what I can tell and from what

23  I look at in the various court cases, up until

24  not that recently -- actually, my case is one of


 1  the few -- there's always been the justification

 2  of, "You're not going to tell a person what they

 3  can do until it hurts somebody else."

 4  Q             Okay.

 5  A             That's what happened with

 6  motorcycle helmets also.

 7  Q             So would it be fair to say, then,

 8  that your view is that the State has no business

 9  in -- for example, the library has no business

10  enacting safety rules?

11  A             Yes, that is -- well, it depends on

12  what kind of safety rule it is.

13  Q             You understand the courts don't

14  agree with you; is that correct?

15  A             The Courts that I have been to ---

16  Q             Well, answer my question. You

17  understand that the law in Ohio -- and you've

18  been representing yourself in these cases many

19  years; correct?

20  A             (No verbal response.)

21  Q             You can answer that.

22  A             Yes.

23  Q             Back to the early 2000's; correct?

24  A             Yes.


 1  Q             And you've done a lot of legal

 2  research in this; correct?

 3  A             That is correct.

 4  Q             And you've read the Revised Code;

 5  correct?

 6  A             That is correct.

 7  Q             All right. Then you should

 8  understand, do you not, that libraries and other

 9  public institutions have the lawful authority to

10  enact safety rules. Do you agree with that?

11  A             Not without a qualifier.

12  Q             And is the qualifier reasonable

13  safety rules? 

14  A             No.

15  Q             What's the qualifier?

16  A             The qualifier is whether you are

17  protecting a person against -- from themselves or

18  whether you are protecting the public at large.

19                If you look at the whole police

20  power, okay, it talks about the health, safety

21  and everything of the general public. And that

22  has always been interpreted, except, it seems, in

23  my case. In my various briefs, I have cited many

24  other cases where the Courts specifically say


 1  that it has to have an impact on the public at

 2  large. 

 3  Q             Let me ask you something, Mr.

 4  Neinast. You say that the -- it has to have an

 5  impact on the public at large; is that correct?

 6  A             Right, or protect -- in other

 7  words, you could stop me from hurting somebody

 8  else. 

 9  Q             Uh-huh.

10  A             But if it's really a case of

11  stopping me from hurting myself, why aren't there

12  ski laws? Why aren't there ---

13  Q             So, for example ---

14  A             Why aren't there skateboarding

15  laws? 

16  Q             So, for example, you think that

17  suicide should be legal?

18  A             Actually, I don't know whether it

19  is or not, but ---

20  Q             Isn't that the Government

21  interfering in the most personal of choices?

22  A             As I think about it -- by the way,

23  let me mention, my father did commit suicide.

24  Nobody prosecuted him for it.


 1  Q             Okay. Answer the question. Do you

 2  think suicide should be illegal?

 3  A             I can see that the impact on

 4  society at large could justify it, but I

 5  personally -- this is just a personal opinion,

 6  not what I've read in the law, whatever, is if I

 7  don't have that kind of body integrity to decide

 8  what I want to do with my own life -- and quite

 9  frankly, seeing my mother go through Alzheimer's

10  right now, I've actually -- she has an end of

11  care thing that, you know, if something happens

12  -- end of care statements are like suicide in

13  some sense, that don't do heroic efforts. I hope

14  if I get to the stage of Alzheimer's where she

15  is, that I've had the wherewithal to probably

16  kill myself first.

17  Q             So is it -- every person for

18  himself, in other words?

19  A             That is a gross

20  mischaracterization. I should probably object to

21  that, but that pretty well did it anyways.

22  Q             All right. Well, to sum up, you

23  would agree that your view is that the

24  Government, the Library, has no business enacting


 1  these rules; is that correct?

 2  A             (No verbal response.)

 3  Q             Has no business enacting the no

 4  shoe rule. 

 5  A             That is correct.

 6  Q             Does it have any business enacting

 7  the no shouting rule?

 8  A             Oh, yes.

 9  Q             Why?

10  A             A couple of things. Libraries, in

11  my view, and from what I can tell in the law,

12  libraries are there for a specific purpose. The

13  General Assembly has told libraries what they are

14  there for. It is to provide the citizens of the

15  State of Ohio with maximum access to library

16  services. 

17  Q             And by the way, they can still do

18  that and require them to wear shoes, can't they?

19  A             Not if they're not providing me

20  with library services.

21  Q             Well, you wear shoes sometimes,

22  don't you? 

23  A             (No verbal response.)

24  Q             Is that true or not?


 1  A             Well, obviously, it's true.

 2  Q             Right. So there are some

 3  circumstances in which you wear shoes; correct?

 4  A             Very, very few. Very, very few.

 5  Q             All right. But there are some in

 6  which you do; correct?

 7  A             A library is certainly not worthy

 8  of that. Your Honor is.

 9  Q             So you make a decision as to where

10  you wear shoes and where you don't; is that

11  correct? 

12  A             I probably wear shoes about ten

13  hours a year. So ---

14  Q             And you rattled off a long list of

15  places where you've been where you wear shoes;

16  correct? 

17  A             No. Where I ---

18  Q             I'm sorry -- where you go barefoot.

19  A             I've made that same mistake often

20  myself.

21  Q             Where you go barefoot; correct?

22  A             That is correct.

23  Q             All right. And do you know if each

24  and every one of those places allows barefooting,


 1  or did you just not get caught?

 2  A             It's hard to know sometimes, I'll

 3  admit that.

 4  Q             Well, answer this question. Do you

 5  know -- you mentioned many stores, correct, and

 6  many public places.

 7  A             Yes.

 8  Q             Right? Do you know whether or not

 9  each and every one of those, of the ones you

10  mentioned, has a rule that says barefooting is

11  fine, or if some of them prohibit barefooting?

12  A             I do not know that for a fact for

13  every single one of them, but I do know for a

14  fact for a pretty good portion of them.

15  Q             Well, so there are some that allow

16  barefooting, and there are others, by your own

17  testimony, where it's probably not allowed, but

18  you haven't gotten caught; is that correct?

19  A             (No verbal response.)

20  Q             Is that correct?

21  A             Yes. But give me a moment to take

22  a note for redirect.

23  Okay. Go ahead. Thank you.

24  Q             We were talking before about the


 1  law with which you've had some experience on

 2  this; correct?

 3  A             Yes.

 4  Q             And you would agree, based upon

 5  your Federal court case, your Columbus State

 6  case, and your case here, that those Courts that

 7  have ruled have said that public bodies,

 8  libraries in particular in those cases, have the

 9  authority to promulgate rules of safety; correct?

10  A             Yes. And that was a very

11  interesting experience.

12  Q             I don't doubt it. And in the

13  Federal case, they upheld the Columbus Metro

14  Library rules requiring shoes; correct?

15  A             What they basically said was that

16  it was not a First Amendment violation.

17  Q             And my question is: were you

18  allowed to go in after that case was over and not

19  wear shoes and go barefoot?

20  A             What you said is correct, but only

21  because it did not violate my First Amendment

22  rights.

23  Q             All right. I'm not getting into

24  the reasons now.


 1  A             Okay.

 2  Q             But at the end of the case, you

 3  were not allowed to go into the public library---

 4  A             That's true.

 5  Q             --- barefoot; is that correct?

 6  A             That is true. And it's very

 7  interesting to see what their reasoning was and

 8  what they just conveniently ignored.

 9  Q             All right. Well, I guess that's

10  why they're Judges and we are who we are.

11  A             That may be.

12  Q             Now, I assume -- and we've

13  discussed this a little bit -- that you would

14  agree that if one has a breach in any part of

15  one's skin, that germs can get in through that;

16  correct? 

17  A             There is a possibility.

18  Q             Okay. Now, you would agree, would

19  you not, that cracks or cuts in the feet are

20  common, are commonplace; correct?

21  A             I don't know that one way or the

22  other. That requires speculation. All I know is

23  that mine don't. 

24  Q             I'm sorry?


 1  A             All I know is that mine don't.

 2  Q             Yours don't.

 3                MR. DOLIN: Let's have this marked

 4  as Defendant's Exhibit 12 for identification.

 5  Do you wish to see it, Your Honor?

 6                THE COURT: No.

 7                         - - -

 8                Thereupon, Defendant's Exhibit No.

 9  12 was marked for purposes of identification.

10                         - - -

11  Q             Mr. Neinast, this is -- I'm showing

12  you what has been marked as Defendant's Exhibit

13  12 for identification. And it is something I've

14  pulled down off of the web.

15                MR. NEINAST: Objection, Your

16  Honor. It can't be authoritative in the least.

17  Q             It's written by Bob Neinast;

18  correct? 

19  A             Oh, okay, that'll do.

20  Q             All right. Do you recall writing--

21                THE COURT: Do you withdraw the

22  objection? 

23                MR. NEINAST: I think so.

24  Q             Do you recall writing a piece


 1  called "Foot Care and Heel Cracks"?

 2  A             Yes. 

 3  Q             Very good. And do you recall

 4  writing the following -- and you just testified

 5  that you can't be sure about cracks in the feet,

 6  correct, except your own; is that right? Didn't

 7  you just testify about that? 

 8  A             I guess there's no way to have it

 9  read back as to exactly what I said.

10  Q             No. 

11  A             Because I don't remember the exact

12  words.

13  Q             The Court will remember what -- the

14  record says what the record says.

15  A             I'm pretty sure I said that foot

16  cracks can occur, but not mine, not me.

17  Q             All right. Well, tell me if you

18  wrote this. "While barefoot is not subject to

19  many of the foot maladies of the shod (like

20  corns), they do get things like heel cracks."

21  And then it goes on.

22  A             Right.

23  Q             "There are many, many shod people

24  who get heel cracks."


 1  Did you write that?

 2  A             Sure.

 3  Q             If I show this to you, will that

 4  refresh your memory?

 5  A             Yeah.

 6  Q             Did you write that? And that was

 7  written in 2010; correct?

 8  A             Yeah.

 9  Q             That article appeared on the web in

10  2010; correct? 

11  A             Certainly.

12  Q             And what was the name of the

13  website it appeared on?

14  A             This site, "Barefoot Living," blog.

15  Q             So your view, at least in 2010, was

16  that many of the shod, or people who wear shoes,

17  get cracks in their feet; correct?

18  A             Correct.

19  Q             And that some barefooters get

20  cracks in their feet; correct?

21  A             Yes, some barefooters get cracks in

22  their feet. 

23  Q             And you just agreed that -- and, in

24  fact, you described -- you said that there are,


 1  quote, "many, many shod people who get heel

 2  cracks"; is that correct?

 3  A             That's what I say, but, of course--

 4  Q             Am I quoting that accurately? Yes

 5  or no. 

 6  A             You're quoting it correctly.

 7  Q             And those were your words; right?

 8  A             I wasn't under oath when I wrote

 9  them. 

10  Q             Did you lie?

11  A             When one writes, one is less

12  careful. When one is writing for a blog, one is

13  less careful.

14  Q             Did you lie when you wrote this on

15  the blog? 

16  A             One is less careful.

17  Q             I'm asking you a question.

18  A             Of course, I didn't ---

19  Q             I'm not asking if you were less

20  careful. Were you lying?

21  A             No.

22  Q             Okay. Did you intend it to be the

23  truth? 

24  A             I intended it to describe the


 1  general situation that I knew, that I thought

 2  about.

 3  Q             Did you intend to put this

 4  information out on the internet intending it to

 5  be the truth or intending it to be

 6  misinformation?

 7  A             If you read the entire entry---

 8  Q             I'm asking you about that quote. I

 9  didn't write those words. You did. Did you

10  intend those words to be the truth?

11  A             I intended those words to be an

12  introduction to the point of the article.

13  Q             To kind of fudge?

14  A             If that's what you want to say.

15  Q             All right. So your testimony is,

16  you wrote it, you put it on the web, but maybe it

17  wasn't true. Maybe you didn't mean it; is that

18  right? 

19  A             When it went out there is more

20  irrelevant. It's just introduction material to

21  set up the point of the article.

22  Q             Now, you would agree that for

23  people who have diabetes, for example ---

24  A             Could I get my own copy of that at


 1  some point?

 2  Thanks.

 3  Q             That's the only copy I have.

 4  You would agree that the diabetes

 5  in other people, that there are -- that walking

 6  barefoot could have devastating implications;

 7  correct? 

 8  A             I tend -- I don't want to put it

 9  anywhere near that firmly.

10  Q             It could be damaging to their

11  health; correct?

12  A             Anything can be damaging to your

13  health. 

14  Q             Well, you testified before about

15  certain -- maybe having rules for certain at-risk

16  populations, including diabetics; correct?

17  A             Yes.

18  Q             All right. Are diabetics at

19  greater risk for having foot infections than non-

20  diabetics? 

21  A             Some are, some are not.

22  Q             All right. Now, there are some

23  people who walk around with diabetes and aren't

24  -- and don't know they have it; is that correct?


 1  A             I have no idea.

 2  Q             All right.

 3  A             I mean, I suspect it's true.

 4                MR. NEINAST: Objection. Asking

 5  for speculation.

 6                THE COURT: Sustained.

 7  Q             Let's say this. Would you agree

 8  that some people have diabetes? Let's start with

 9  an easy one. 

10  A             I'd be really tempted to speculate,

11  but my mother has diabetes, so -- some people

12  have diabetes. I think that's common knowledge.

13  Q             And most people find out -- I would

14  assume, would you agree, that people find out

15  that they have diabetes by being informed of that

16  by a doctor; correct?

17  A             I actually have no information that

18  tells me that. I can speculate that that is

19  probably the case, but I personally have no

20  knowledge of that one way or the other.

21  Q             When one walks, you put

22  approximately one and a half times your body

23  weight on your feet, do you not?

24  A             That's certainly possible. That's


 1  something I never really looked up or don't

 2  remember.

 3  Q             Well, you ---

 4  A             If you say so, that's probably

 5  okay.

 6  Q             I'm not saying. You ---

 7  A             Did I say that?

 8  Q             You have proffered yourself as

 9  someone who is very experienced and knowledgeable

10  about the human foot; correct?

11  A             No.

12  Q             So you're not knowledgeable about

13  the human foot?

14  A             I don't know a whole lot about the

15  interior of the human foot, or I could not name

16  you all of the bones that go into the human foot.

17  My experience is in walking barefoot over various

18  sorts of experiences. Sometimes I supplement

19  that by looking up specific papers or whatever in

20  order to find out more about something in

21  particular, but it's always in the context of

22  going barefoot and whether that may or may not be

23  of some use or a justification for why going

24  barefoot could be better in some instances.


 1  Q             All right. If I told you that the

 2  human foot -- or that the human foot absorbs

 3  about one and a half times the body weight each

 4  time you step on it, would you disagree with

 5  that?

 6  Q             If you have a source that says

 7  that, it's certainly reasonable.

 8                Did I write that too at some point?

 9  I mean, it could be the case that I looked it up,

10  wrote it down, and then moved on.

11                         - - -

12                Thereupon, Defendant's Exhibit No.

13  13 was marked for purposes of identification.

14                         - - -

15  Q             I have marked for identification

16  Defendant's Exhibit 13. And this is something

17  also that came off the internet. 

18  A             Oh, good. 

19  Q             And it's from the American

20  Pediatric Medical Association. 

21                All right. And I've highlighted a

22  section that indicates that every step you take

23  places 1.5 times your body weight of pressure

24  directly on your feet. 


 1  Do you dispute that?

 2  A             Before I comment on this, I need to

 3  try to think about this right. Let's see. The

 4  rule is that you can use these on cross, but they

 5  have to be --- 

 6  Q             You're free, Mr. Neinast, to have

 7  the mental operation of your mind without telling

 8  me what you're doing. 

 9  A             Okay. This is not an authoritative

10  source.

11  Q             Do you dispute it? I just asked

12  you, do you dispute -- do you dispute that you

13  put---  

14  A             But no. Oh, this is running.

15  Q             The sentence doesn't talk about

16  running.  

17  A             Oh, okay. 

18  Q             I'm just asking you, do you dispute

19  it, yes or no?

20  A             No. I mean, it's certainly

21  reasonable.

22  Q             Okay.

23  A             I mean, it might be only 1.2 or

24  whatever, but there's certainly some of that


 1  going on.

 2  Q             I'm not going to ask you your

 3  weight, but if you weighed 200 pounds -- I don't

 4  think you weigh that much -- you'd be putting

 5  about 300 pounds of pressure on your feet every

 6  time you take a step; is that correct?

 7  A             As do you on your ---

 8  Q             That's correct.

 9  A             And it's 300 pounds of weight, not

10  -- of total force, not pressure.

11  Q             Well, 300 pounds of weight. Okay?

12  That's fine. That's fine.

13  A             But it's -- you're going to start

14  talking pressure as divided over an area, so you

15  then have to figure out the whole area that it

16  goes into. Okay?

17  Q             You know what, I'm not going to get

18  into physics with you.

19  A             Sorry. I couldn't help myself.

20  Q             You came into my arena. I'm not

21  going into yours. All right.

22  A             I might also just point out,

23  though, that the human evolved to be able to do

24  exactly that. 


 1  Q             Okay.

 2  A             Whatever the right number is ---

 3  Q             No problem. No problem with that.

 4                Okay. Now, if one -- would you

 5  agree that if one steps on a tack or a staple or

 6  a sharp object with one's foot, that -- and you

 7  don't see it, that the full force of the body

 8  weight would come down on that object; correct?

 9  A             I dispute that.

10  Q             You dispute that?

11  A             Yes, I do.

12  Q             Why?

13  A             You obviously did not read enough

14  of the blog. What I have found and what other

15  barefooters agree to, because there is -- the

16  whole Society for Barefoot Living is actually a

17  group that does not share its stuff with

18  everybody on the web. And so, I get input and

19  information from all these sorts of people.

20                And not only me, but other folks

21  realize that when you are barefoot, you've got

22  this wonderful tactile impressions. And there

23  are many instances where you can start stepping

24  on something, you immediately can feel it and


 1  start withdrawing weight. You can only do that

 2  barefooted.

 3                However, if there's something long

 4  enough to penetrate a sole -- and many things

 5  are, nails, whatever -- by the time it is

 6  penetrated to the point where your foot can --

 7  the sole of your foot can actually feel it, by

 8  that point, you have no ability to withdraw your

 9  foot any more and you're much more likely, in

10  that instance, to end up jamming it deeper into

11  your foot or something like that.

12                I can tell you there are many, many

13  times when I've been hiking and there's thorns or

14  whatever, I start to put my foot down. It's

15  like, "Oh, don't." I pull it back up again. No

16  damage at all to my feet.

17  Q             Well, let's say this: If there's a

18  tack, would you agree that, for the most part, in

19  just common behavior, that if there's a tack

20  sticking up on a table and I put my hand down on

21  the table, that might hurt; right? But I'm not

22  putting my full body weight on it, or a large

23  portion of my body weight on it. Would you agree

24  with that? 


 1  A             Yeah.

 2  Q             All right. So the greater

 3  likelihood is that a sharp object will drive in

 4  deeper into the foot than it would in the hand;

 5  isn't that correct?

 6  A             Probably, though -- I need to put a

 7  caveat on that. It depends on the surface you're

 8  on. Depending on how thick the carpeting is or

 9  if you're out in the woods with a thorn or

10  something else, that there's all sorts of give,

11  there's all sorts of possibilities of getting

12  pushed to the side the way you're walking on it.

13  So it's not like it's any sort of foregone

14  conclusion. If you've got just the right set of

15  circumstances ---

16  Q             Let's control for that. Let's say,

17  the same tile surface.

18  A             If it's a tile surface and you do

19  not see it there, which is actually -- and I need

20  to point out, barefooters also get very good at

21  looking for hazards.

22  Q             I understand. Oh, you do. You

23  can't speak for all barefooters; correct?

24  A             While that is true, there have been


 1  many posts on the Society for Barefoot Living --

 2  not the blog, whatever, about -- both saying that

 3  exact thing.

 4  Q             All right. So you would agree,

 5  then, that, you know, one ---

 6  A             It is possible.

 7  Q             --- one of these sharp objects --

 8  that you're not putting as much weight on when

 9  you hit a sharp object with your hand as you

10  generally would if you put your foot on it;

11  correct?

12  A             Life is a risk. There's all sorts

13  of things one can do.

14  Q             Just yes or no. Would you agree

15  with that?

16  A             I need you to restate it. I'm

17  sorry.

18  Q             Would you generally agree that on

19  the same surface -- all right -- there's a tack,

20  and I put my hand down, I'm not putting as much

21  force of body weight on it as I would do if I

22  don't see a tack and I step on it?

23  A             That is true.

24  Q             All right. So what is wrong with


 1  the library attempting to prevent that kind of

 2  injury? 

 3  A             Because as a fully grown adult, I

 4  accept the risk.

 5  Q             What about people who are not fully

 6  grown adults?

 7  A             If you want to do it, you know,

 8  just as in Ohio law, the motorcycle law says that

 9  if you're under either 21 or 18, you have to wear

10  a helmet, and if you're over the age of 21, you

11  don't -- or whatever the number is, you don't.

12                If they want to -- I mean, I think

13  it would be rather silly when you consider the

14  history of kids going barefoot all summer long.

15  Q             What about people who are blind?

16  What about people ---

17  A             Do you really think that a blind

18  person would be so stupid as to walk around

19  barefoot and not be able to see what they're

20  doing? 

21  Q             I don't know.

22  A             And if they are, that's their

23  problem; right?

24  Q             Okay. It may well be.


 1  A             I mean, a blind person can just as

 2  easily step in a hole in the sidewalk.

 3  Q             Well, blind people walk with canes,

 4  do they not? 

 5  A             Canes aren't going to find every

 6  hole. 

 7  Q             Would you reject a blind person

 8  from the Society for Barefoot Living?

 9  A             Actually, no. There are some

10  members who are blind.

11  Q             How about that? You see?

12  A             They learn how to walk by using

13  their sensory that -- they don't use the firm

14  stepping, but they use more of a brushing sort of

15  thing. Or there's another one who is blind who

16  actually uses a wheelchair because he's got other

17  problems. So there are -- if you want to do it,

18  there are ways to do it safely.

19  Q             You spent a lot of time today

20  talking about high heels and other hazards. Is

21  your position that if you can't take care of all

22  the hazards, then you should take care of none of

23  the hazards? Is that your position?

24  A             No.


 1  Q             Okay. So it's okay, then, to take

 2  care of some hazards without taking care of all

 3  of them; correct?

 4  A             If you have done a proper risk

 5  analysis to make sure that you're hitting the

 6  ones that matter.

 7  Q             All right. You've heard the

 8  expression, don't let the perfect chase out the

 9  good; correct? 

10  A             Actually, I've never heard that

11  before, but okay.

12  Q             All right. Well, you understand

13  what I'm saying?

14                Let me rephrase it.

15                Just because we can't eliminate all

16  risks, we should still try to eliminate the risks

17  that we can eliminate; correct?

18  A             So you're saying that we -- since

19  we can eliminate the risk of high heels, that we

20  ought to? 

21  Q             Well -- that wasn't my question.

22  A             I know.

23  Q             And you'll certainly take the

24  opportunity, I suspect, to redirect yourself.


 1  A             Give me a moment.

 2  Q             Go ahead.

 3  A             Okay. Go ahead.

 4  Q             My question is that because the

 5  library, or any other public facility, cannot

 6  eliminate all risks for everything, that they

 7  should attempt to eliminate no risks. Is that

 8  your position?

 9  A             Of course not.

10  Q             Okay.

11  A             I suspect that the rank order ---

12                MR. DOLIN: I have nothing further,

13  Your Honor.

14                MR. NEINAST: That's it?

15                THE COURT: Okay. You may

16  redirect.

17                         - - -

18                  REDIRECT EXAMINATION

19                MR. NEINAST: Okay. I'm not sure

20  how to redirect myself between both testifying

21  and trying to keep track of stuff.

22                Okay. Let's see. You asked me

23  about my training and whether I was an expert or

24  had expertise in all this other sorts of things


 1  that I write about or talk about or whatever.

 2  Par              t of the training -- first of

 3  all, if I do say so myself, physics is probably

 4  one of the sciences that is kind of the broadest.

 5  If you take a look at where physicists have gone,

 6  I mean, I was a physicist and I went off to do

 7  system engineering. Okay? Other physicists end

 8  up going all sorts of other places. You'd be

 9  amazed if you look at -- this is probably not a

10  good endorsement, but physicists ended up being a

11  lot of the quants for Wall Street.

12                Now, I'm not sure that's a good

13  endorsement, because there was the collapse and

14  whatever, but they were just doing the math

15  stuff.

16                You learn how to read documents.

17  You learn science, in general. You learn what

18  kind of sources are reliable sources and what

19  kind of sources are not reliable sources. You

20  learn how to deal with peer review journals. You

21  learn how to do research, so if you find

22  something, you don't stop at just finding, "Oh,

23  that agrees with me." You, instead, go ahead and

24  say, "Well, what else can I find? Let me look up


 1  the references in there and see what they're

 2  saying," so that you can verify the truth -- that

 3  might be too strong -- but verify the scientific

 4  backing of those sorts of documents.

 5                It's a little bit of Wikipedia,

 6  where people dump on Wikipedia, but if you

 7  actually look and use Wikipedia, if you use it

 8  correctly, it gives you a good first look at

 9  things. And there's real physicists and all sort

10  of scientists writing those pages. But then what

11  you do next is you go and take a look at the

12  citations they've got in there. And those are

13  often citations to real scientific papers. You

14  then go and take a look at the papers and

15  whatever.

16                That's what you get trained as when

17  you're a physicist. That's how a physicist can

18  look up the law. That's why this particular

19  physicist, when he actually tried appealing his

20  case to the Supreme Court, he made sure he found

21  a copy of -- I forget the name of the book, but

22  it's Supreme Court practice that tells you

23  exactly what the heck you have to do. And you

24  research it and you look it up and you find out,


 1  okay, this is how you do it. Did that, all the

 2  sort of stuff, all these sorts of things.

 3                This is obviously the first time --

 4  all my other cases were summary judgment. Okay?

 5  So this is obviously my first time trying to do

 6  any of this. And I have no idea how well I'm

 7  doing and I don't need anybody to say how well

 8  I'm doing, except I read as much as I can. And

 9  most of my failings are because my -- I think

10  it's more lack of experience than lack of trying

11  to get access to as many sources as possible to

12  try to teach myself as much as possible.

13                Therefore, when I read any of these

14  -- or put forth any of these scientific papers

15  that I sent to Ms. Steiner or anything like that

16  about the relative safety or whatever, okay -- I

17  actually looked up MRSA too for my mother's

18  instance, to try to figure out what was going on

19  with that and whether the doctor was doing the

20  right thing, more of less. But when there's

21  anything in these sorts of papers, I apply not so

22  much the exact scientific training I have in that

23  field, which I don't have it, but it's a meta

24  analysis, if you're familiar with that term, of


 1  being able to figure out what I need to figure

 2  out; being able to figure out what isn't correct,

 3  what is correct, and making myself not an expert

 4  in any of those fields, but being able to cut out

 5  of it what's important.

 6                And when I talked earlier in my

 7  earlier testimony about having taught myself

 8  queuing theory, having taught myself all these

 9  other sorts of things, that's part of the way I

10  like learning. I get tremendous enjoyment out of

11  that sort of stuff. Okay? And that's whatever

12  level of expertise I have provided regarding that

13  sort of stuff.

14                Okay. Let's see. You talked about

15  all users in the library and diabetics. I think

16  we already addressed that, but let me address

17  diabetics again. There are a number of diabetics

18  in the Society for Barefoot Living. They report

19  -- first, let me report on my own experience, not

20  with diabetes, but how the heck do I walk in the

21  cold.

22                What I have found out is often my

23  feet still get cold -- well, actually, I haven't

24  worn shoes out when it's cold for a long time


 1  either. But remembering the way it was before,

 2  that my feet have a resistence to cold that's so

 3  much better than it used to be when I wore shoes.

 4  And frankly, I'm getting older. You'd think that

 5  things would get worse as I get older.

 6                If you look up papers, there's a

 7  paper on something called CIVD. There's actually

 8  more -- I looked at lots of papers. I think it's

 9  the current state of the art. It's called cold-

10  induced vasodilation, vaso being your blood

11  vessels. Eskimos get this really, really good,

12  because they have to be going in fishing holes

13  and whatever, and if their hands froze up, got

14  numb, they wouldn't be able to live up there.

15                And what happens is, when your body

16  first gets cold, it starts reducing the blood

17  flow to make sure that your core body temperature

18  is staying warm. Okay? Once it realizes -- and

19  it takes about five to ten minutes. There's a

20  posting on the blog about it if you want to learn

21  more. It takes five or ten minutes for the body

22  to say, "Oh, yes. My core temperature is doing

23  okay. Therefore, let me rush warm blood back to

24  the hands."


 1                And then all of a sudden, you --

 2  it's really amazing to go hiking when it's 35

 3  degrees down in Hocking Hills and your feet are

 4  getting colder and colder, "Oh, gee, I wonder--"

 5  and then all of a sudden, this rush of warmth.

 6                Then what happens is, it actually

 7  osculates. So it kind of overdoes it and then it

 8  backs off. You start getting cold again. And

 9  I've experienced this myself. And then it does

10  the rush again. And after about three

11  iterations, it's kind of tapered off and you

12  feel, "Oh, yeah, we're handling this fine." And

13  from that point on, I'm walking in 35-degree

14  temperatures and my feet are perfectly

15  comfortable. Okay?

16                Now, that's because I've got really

17  good blood flow in the feet also. It's because

18  when you walk barefooted -- well, let me say,

19  when you walk in shoes, your foot is encased.

20  None of that stuff is moving very much. And I

21  think if you all just think about it, the next

22  time you walk, you'll realize, "Oh, yeah, my foot

23  is encased in there. It's not moving." Well,

24  that means that your muscles aren't moving very


 1  much. It uses different sets of muscles. Your

 2  ligaments aren't moving. The blood flow isn't

 3  good, and that can give you cold feet because

 4  you're not getting good blood flow, because -- I

 5  don't know if this has happened.

 6                The problem diabetics have is

 7  called diabetic neuropathy. They get bad

 8  circulation. Because of the bad circulation,

 9  they lose some of the sensation. And what that

10  means is, if they step on something, they may not

11  feel it. That's why one of the recommendations

12  for diabetics is to inspect their feet every

13  night, even if they're wearing shoes, because if

14  there's cracks and MRSA -- cracks on their feet

15  and MRSA in their shoes, what they need to do is

16  inspect it every -- inspect their feet every

17  night.

18                Now, talking about increased blood

19  flow, what the diabetics in the Society for

20  Barefoot Living have reported ---

21                MR. DOLIN: Objection.

22                THE COURT: Sustained.

23                MR. NEINAST: I'm not sure how to

24  get around that, because -- I guess I could have


 1  brought one in, but -- you know, there's one in

 2  California, there's one in whatever.

 3                Let me just say that from what I

 4  have read, applying my own experience, walking

 5  barefoot increases blood flow. And that blood

 6  flow is one of the major problems causing

 7  diabetic neuropathy.

 8                It's not a panacea. There are

 9  studies from India, for instance, looking at

10  that. And barefooters, from my recollection of

11  the study, which I did not bring with me, they do

12  have problems. Okay? But those are people who

13  have gone barefoot their entire lives and they

14  didn't realize what was going on for medical

15  care, that they had diabetes. And probably by

16  the time they found out, they're far enough along

17  that it's not going to help.

18                Okay. I wish I took better notes,

19  because I don't remember.

20                From what I can tell from your

21  questions, they're based on paranoia, not fact.

22  Blood, feces, any of the other sorts of things,

23  with in-tact skin, it's not a problem.

24                I had mentioned before that I had


 1  been injured. I have injured my feet in the past

 2  and I'm surprised you didn't ask me about that.

 3  I know exactly what kind of conditions have

 4  injured my feet, and what sort of places. It's

 5  when you're out hiking. The easiest way for me

 6  to hurt my foot is to go bushwhacking. Okay?

 7  When you go off trail, every now and again

 8  something happens. The usual way you -- and by

 9  hurt my foot, I mean in more than just a trivial

10  fashion. Okay? Sometimes I just get a thorn.

11  And actually, usually what happens with thorns

12  is, it doesn't actually penetrate to the quick,

13  but you just feel it when you step on it again.

14  So you just stop, you pull it out and you keep

15  going. But what can sometimes happen is, if you

16  step on a stick that's got a little stump on it,

17  sometimes it can peel back some skin.

18                I should point out that the state

19  park system has no rules against hiking barefoot.

20  As a matter of fact, the rangers that see me on

21  the Hocking Hills hike when I go on organized

22  hikes like the mid-winter hike, they're all

23  fascinated. I have actually gone on hikes at

24  Clearcreek. The head ranger there has started


 1  hiking barefoot himself. There's no rules

 2  against it there either.

 3                When I've had the skin peel back,

 4  I'll put a little antibiotic on it sometimes when

 5  I get home, but not until I get home. I've never

 6  had it progress beyond anything like that. It

 7  heals up, it heals over. No big deal.

 8                The joy of barefoot hiking so much

 9  outweighs the risk of any little ding. I mean,

10  that's what I call them when people talk to me.

11  I call it a ding. Quite frankly, I usually have

12  more dings on my hands from working around the

13  garden, from working with tools around the house,

14  than I have on my feet. Sometimes the dings on

15  my feet are on the top of my feet or on my legs

16  or whatever, just from getting little scratches

17  from walking by various sorts of things.

18  Certainly nothing compared to the time I lost the

19  cartilage in my knee.

20                Quite frankly, when I wear shoes,

21  after a bit of a while of walking around with

22  shoes on, that knee hurts in a way that it never

23  does on bare feet. That's why I really think

24  that it's up to -- it should be up to me to


 1  decide. I know what hurts me. I know what

 2  doesn't hurt me.

 3                Let's see. Let me add one more

 4  injury. And this is what I want to characterize

 5  as -- I already mentioned, thorns. The main

 6  injury I tend to get if I'm hiking usually off-

 7  trail -- the one time -- this was down in Shawnee

 8  State Park. They had actually made the trail by

 9  taking a bunch of little saplings that are about

10  a centimeter across and clipping them off about

11  half an inch above the trail. And so, I managed

12  to do about a mile and a half of that, and then

13  wasn't watching carefully enough and pulled back

14  a thing. I ended continuing my hike to the end

15  where I was camping over night and walked back

16  the entire distance the next day. It really

17  wasn't that big of a deal. No infection. I

18  don't know how much MRSA there is outside.

19  Probably in the middle of Shawnee, the actual

20  forest, there might be less MRSA out there. But

21  there's certainly plenty of others.

22                From other scientific papers I've

23  looked at -- and my experience seems to back it

24  up -- there's all this talk about our immune


 1  systems are not getting sufficient training, that

 2  allergies are reactions where the body is trying

 3  to work the way it used to, in terms of more

 4  insults to it. So every single -- I look at it

 5  that every single time I get a little ding out in

 6  the forest, whatever is there has basically

 7  inoculated me against that particular -- that

 8  particular organism.

 9                I will tell you about the worst

10  barefoot injury that I did get. I was at Hocking

11  Hills. I was at Rose Lake beneath the damn, if

12  anybody's familiar with that or cares. And

13  hidden in the soil there was an old corrugated

14  pipe. And I managed to rip a pretty good --

15  chunk is too big of a word. It went down maybe

16  -- it went down to the quick and I was bleeding 17 because of it.

18                I walked back to my car a mile and

19  a half. My only big concern was that it was

20  really, really bad advertising for walking

21  barefoot. Got home, treated it, did the usual

22  stuff. The following weekend, I went on a 20-

23  mile hike.

24                Now, because I was a little


 1  concerned with it, I actually did wear shoes for

 2  that hike, but it was still sufficiently minor in

 3  some sense that, with a little bit of -- you

 4  know, a bandage and a little bit of padding, I

 5  was able to do a full 20-mile hike. My son was a

 6  Boy Scout and one of the merit badges requires a

 7  20-mile hike. So I managed to do a full 20-mile

 8  hike and the heel was not a problem and the heel

 9  healed. It just healed right up. No big deal.

10  Yeah, I put some antibiotic in it, but that's how

11  you deal with cuts on your hands, to whatever.

12  It's not like -- it doesn't hit me as that big of

13  a deal.

14                Okay. You asked about places that

15  allow me in, but only because I was not caught.

16                You might call me a bit of a

17  crusader. I'm surprised you didn't actually go

18  down that line of questioning. Every now and

19  again, a place or business will throw me out. It

20  does happen, less often than you think, whether

21  it's because I was never noticed before or

22  whatever. Sometimes it appears to be that they

23  don't care, but then somebody complains thinking

24  that it's illegal, they'll then decide they have


 1  to do something. There have been a couple

 2  instances that I can tell that that's what

 3  happened.

 4                With Kroger, it usually is

 5  individual managers. What happens when this

 6  happens is, the first thing I do is I try to talk

 7  to the manager or I try to talk to a corporate or

 8  whatever.

 9                In every single instance -- let me

10  just withdraw that. In every instance I can

11  remember -- I can't absolutely guarantee -- what

12  had happened is, you go to corporate and they

13  say, "Oh, yes, we have a shoe rule." But first

14  of all, you're talking to somebody who is just in

15  their customer relations department and they

16  don't know.

17                So I ask them, "Well, can you shoot

18  me a copy of the shoe rule?"

19                "Well, no. It's not written down

20  anywhere."

21                "Okay. Then how do you know it's a

22  shoe rule?"

23                Well, they can't really answer

24  that. And so it's like they make up the shoe


 1  rule on the spot.

 2                MR. DOLIN: Your Honor, I'm going

 3  to object.

 4                THE COURT: Sustained.

 5                MR. NEINAST: Can you give me a

 6  hint what I was doing wrong?

 7                (No verbal response.)

 8                MR. NEINAST: Okay.

 9                MR. DOLIN: My objection was based

10  on hearsay.

11                MR. NEINAST: Okay. Thank you.

12                Let's see. Where was I?

13                It's often a case where you talk to

14  -- an individual manager has decided that in his

15  store, it's not allowed. In CVS, it turned out

16  the other way where I was told by corporate --

17  well, obviously, there's a sign on the door, but

18  I, actually, after talking to the management, was

19  allowed to return and use the store all the time.

20  This actually occurred twice. Once shortly after

21  they converted from Rite Aid to CVS, I was told,

22  You can't be in here." I talked to the manager

23  and from then on, I was allowed to go barefoot

24  until later the managers had changed at some


 1  point and then some other employee got at me. I

 2  went and talked to the manager and then it was

 3  okay to do it again. Okay? So I have pretty

 4  extensive experience here.

 5                With Kroger, what happened there

 6  was one time, I'd been using it barefoot since

 7  right after I retired for probably six months, I

 8  think it was. And at one point, I was then

 9  stopped by a manager on the way out saying,

10  "Well, next time you need to wear shoes." I

11  asked her why is that.

12                MR. DOLIN: Objection.

13                THE COURT: Sustained.

14                Is this in response to the ---

15                MR. NEINAST: This is in response

16  when he was talking about places that don't allow

17  me, but I've been caught -- how do I know I've

18  not been caught. This is instances of where I

19  was caught, so I know -- it gives us a feeling

20  for what happens.

21                THE COURT: Well, okay, but the

22  question was, have you not been caught. I think

23  you've said you suspected that that was the cause

24  a few times.


 1                MR. NEINAST: A few times.

 2                THE COURT: But then ---

 3                MR. NEINAST: This is a case in

 4  which I was caught. And once again, the reason

 5  that -- well, I guess I can't get the reason in

 6  It's hearsay.

 7                THE COURT: When you testified on

 8  direct the first time -- not on the redirect, but

 9  on direct -- you went through a whole host of

10  places where ---

11                MR. NEINAST: Right.

12                THE COURT: --- you're allowed to

13  go barefoot.

14                MR. NEINAST: Okay. Let me then

15  try to put it this way. Among those list of

16  places that I know I am allowed there because

17  I've had discussions with them of one sort or

18  another, and I continue to use them, is:

19  Krogers; well, Galyan's went out of business.

20  Gander Mountain employees have discussed it with

21  me. I'm allowed in there. Staples; The

22  Anderson's; CVS, managers told me there.

23                MR. DOLIN: Objection.

24                THE COURT: Sustained.


 1                MR. NEINAST: CVS allows me in

 2  after I had some sort of discussion with the

 3  manager. Lowe's has allowed me in after I had

 4  some sort of discussion with the manager. Fado

 5  Irish Pub lets me in after I had some discussion

 6  with a waiter. Okay?

 7                In terms of governmental buildings,

 8  the State House. Their rules are published on

 9  line. There is no footwear rule. I got into --

10  I was actually on TV on that one. Franklin

11  County Courthouse, there was an exchange of

12  letters. I was forcibly removed by a police

13  officer, who was misinformed ---

14                MR. DOLIN: Objection.

15                MR. NEINAST: --- and I received a

16  letter of apology.

17                MR. DOLIN: I'll withdraw it.

18  Sorry.

19                MR. NEINAST: Sorry, what?

20                THE COURT: He's withdrawing the

21  objection.

22                MR. NEINAST: Okay. At the

23  Kinneary Federal Courthouse -- this was actually

24  shortly after Richard Reid, the shoe bomber. We


 1  had a nice discussion about enforcing bare feet

 2  in the courthouse there. I'm sorry, not

 3  Kinneary. It was the Stewart in Cincinnati.

 4  Let's see, any other places where they

 5  specifically said -- of course, there was the

 6  Chicago Field Museum also.

 7                So of the places I've listed here,

 8  it's probably about half of them that I have had

 9  discussions with personnel who have some -- are

10  in some degree of authority, and I have continued

11  to use those places. So you draw whatever

12  conclusion you want from that.

13                Okay. Now, let me go back to this

14  blog post. The purpose of this blog posting was

15  for those who do get heel cracks, to tell them

16  the best way to not get heel cracks. So I say

17  such things as -- I'm just going to quote from

18  here: Barefooters do have a lot of experience

19  with keeping their feet in strong and supple

20  condition so we can offer a bit of advice

21  regarding skin creams. One of the products we

22  particularly like is Neutrogena's Norwegian

23  Formula Hand Cream. Don't let the hand in the

24  name fool you. It works just fine on feet. This


 1  product goes on quite thick and can take quite a

 2  while to get absorbed. It mostly contains

 3  glycerin as a moisturizer.

 4                But members of the Society for

 5  Barefoot Living have found that what we think in

 6  this case, while I'm talking for everybody, it's

 7  mainly me and there were discussions behind that

 8  other folks seems to confirm it.

 9                There's an even better skin

10  moisturizer. Lotions contain urea. Urea seems

11  to allow the skin to retain its moisture better;

12  thus, one of the products we think does a

13  superior job is Flexitol Heel Balm with 25

14  percent urea, et cetera, et cetera.

15                So the whole bit about many, many

16  shod people who get heel cracks, I mean, that's

17  just general experience. It's not trying to be

18  precise. It was an introduction to talking about

19  urea, quite frankly.

20                Let's see what else I wrote down as

21  a note. Let's see. You were asking me about

22  whether every hazard has to be fixed at once.

23                I do know about rational basis. I

24  do think that Ohio doesn't fully adopt rational


 1  basis, but also often uses an arbitrary,

 2  unreasonable and capricious standard. And I

 3  think it is unreasonable and arbitrary and

 4  capricious to pick out a hazard that's on the

 5  level of hazard of a one-percent when there are a

 6  zillion other hazards at the nine percent or ten

 7  percent or whatever.

 8                From my experience -- once again,

 9  over 1,300 miles, zillions of stores. As far as

10  I can tell, the hazards to bare feet are very,

11  very low.

12                There are hazards. When I looked

13  it up, in terms of the footwear injury lawsuits,

14  you can find all these things were not where the

15  footwear was specifically implicated or appeared

16  to be implicated.

17                The other thing to keep in mind is

18  that's only when they specifically mentioned a

19  piece of footwear. Every other slip and fall --

20  you know if it had been a barefoot slip and fall

21  or trip and fall or whatever, it would have been

22  in the opinion. So every other one is from

23  somebody wearing shoes. They may or may not have

24  had something to do with it, but the general --


 1  basically, the better tactile impressions --

 2  proprioception is the word that goes with it --

 3  makes me really doubt that bare feet are a level

 4  of hazard that the State needs to take any sort

 5  of notice at -- notice of.

 6                I'm done on redirect.

 7                THE COURT: Okay. Cross again?

 8                MR. DOLIN: Nothing further, Your

 9  Honor.

10                THE COURT: Okay. You may step

11  down.

12                Do you have any other evidence to

13  present, any other witnesses?

14                MR. NEINAST: No. That'll do it.

15                THE COURT: Okay. Any rebuttal

16  evidence, Mr. Dolin?

17                MR. DOLIN: No, Your Honor.

18                THE COURT: And we'll have to go

19  over ---

20                MR. NEINAST: What to do next.

21                THE COURT: --- your exhibits. I

22  just want to make sure that it's clear on the

23  record.

24                Mr. Neinast, would you take a few


 1  minutes or however long you need to look through

 2  your exhibits and then we'll just go through them

 3  one by one again to make sure -- I've already

 4  admitted some into evidence, but I want to make

 5  sure that we're on the same page, everybody.

 6                MR. NEINAST: Thank you, Your

 7  Honor.

 8                MR. DOLIN: For what it's worth, I

 9  can tell you what I have.

10                THE COURT: Okay.

11                MR. NEINAST: One thing that none

12  of the books told me about was how to organize

13  this stuff so as not to make this sort of

14  mistake.  

15                MR. DOLIN: Our exhibits -- the

16  Defendant's exhibits I have are 1 through 11.

17                THE COURT: Right. And that's been

18  agreed to twice.   

19                MR. NEINAST: You say 1 through 11?

20  Oh, Defendant's. Yes, I have no problem. 

21                THE COURT: Right. 

22                MR. DOLIN: As to Mr. Neinast's, I

23  have No. 1 is the bylaws; No. 2 is a letter to

24  Mr. Neinast written on June 19th of '08; No. 3


 1  are minutes of the 10/21/08; No. 4

 2                MR. NEINAST: If you would just

 3  slow down.  

 4                MR. DOLIN: Okay.

 5                MR. NEINAST: Like I said, my

 6  organization was not well done here, so I'm good

 7  through 2.  

 8                MR. DOLIN: 2 is a letter to you---

 9                MR. NEINAST: Right.

10                MR. DOLIN: --- of June 19th of

11  '08.  

12                MR. NEINAST: Yes.

13                MR. DOLIN: No. 3, I have the

14  minutes of 10/21 of ' 08 . 

15                MR. NEINAST: Yes.

16                MR. DOLIN: No. 4 -- and again,

17  these are your exhibits, Plaintiff's -- I have

18  minutes of 11/18/08. 

19                MR. NEINAST: Yes.

20                THE COURT: Okay. And those are

21  admitted into evidence. I think I've already

22  admitted those.  

23                MR. NEINAST: Yes.

24                THE COURT: But if not, they are.


 1                MR. DOLIN: 5, there was nothing.

 2                MR. NEINAST: 5 was, I believe ---

 3                THE COURT: You skipped 5.

 4                MR. NEINAST: Right, which was a

 5  copy of -- you're right. 

 6                MR. DOLIN: Well, you skipped it

 7  So---  

 8                MR. NEINAST: Yeah, I wrote here

 9  unused.  

10                MR. DOLIN: Okay. 6 were

11  interrogatories.  

12                MR. NEINAST: Yes.

13                MR. DOLIN: And they were the

14  interrogatories - -- 

15                MR. NEINAST: The first set.

16                MR. DOLIN: --- dated ---

17                MR. NEINAST: The amended ones were

18  October 30th of 2009. I don't know if you

19  recall---  

20                THE COURT: There were two sets.

21                MR. NEINAST: --- but there were

22  two sets. The first one and then they were

23  amended. So the original was August 5th, 2009,

24  and they were amended October 30th, 2009.


 1                MR. DOLIN: Well, we have No. 6

 2  marked as Defendant's Amended Responses. Okay?

 3                MR. NEINAST: Right, so that's

 4  October. 

 5                MR. DOLIN: And that was served on

 6  -- what's the date of service -- June 23rd of

 7  '09. 

 8                THE COURT: I'm going to admit

 9  that. I'm going to admit No. 6. Plaintiff's 6

10  is admitted. 

11                MR. DOLIN: So that's 6/23 of '09.

12                MR. NEINAST: Hold it. It says

13  right here: Sworn and acknowledged before me and

14  subscribed in the presence this 30th day of

15  October, 2009. 

16                MR. DOLIN: Well, when it was

17  signed and when it was served. The question was,

18  it was served by you on June 23rd of '09. I'm

19  looking at the next to last page.

20                MR. NEINAST: Okay. Okay.

21                MR. DOLIN: So that's been admitted

22  into evidence. 

23                THE COURT: It's admitted.

24                MR. NEINAST: It's admitted. Okay.


 1                MR. DOLIN: No. 7, I have as

 2  skipped. It's not in evidence.

 3                MR. NEINAST: Okay. Let me just

 4  check and see. 

 5  That's because that was the same as

 6  Defendant's No. 3.

 7                MR. DOLIN: Okay. No. 8, I have as

 8  the amended interrogatories.

 9                THE COURT: Okay.

10                MR. DOLIN: And they are dated --

11  I'm sorry. It says: Defendant's Responses to

12  Plaintiff's Second ---

13                MR. NEINAST: That was never

14  amended, but it's No. 8. It's in there.

15                MR. DOLIN: Oh, you're right.

16  Okay. It is marked as 8 and it's dated August

17  10. It was served on August 10 of '09.

18                MR. NEINAST: Yes.

19                THE COURT: And that's admitted.

20  Plaintiff's Exhibit No. 8 is admitted.

21                MR. NEINAST: Great. Thank you.

22                MR. DOLIN: Then we have some

23  affidavits. 

24                MR. NEINAST: Right. 9 and 10 are


 1  the two affidavits from Ms. Steiner.

 2                MR. DOLIN: Yeah. 9 is the one

 3  that -- it looks like it was sworn on ---

 4                MR. NEINAST: The 9th of November.

 5                MR. DOLIN: --- 11/9 of '09.

 6                THE COURT: And that's admitted.

 7                MR. NEINAST: No. 10 was sworn on

 8  the 7th day of January, 2010.

 9                THE COURT: And that's admitted.

10                MR. NEINAST: Okay. Great.

11                MR. DOLIN: 11 were the footwear

12  cases, the research that Mr. Neinast did. And I

13  think that those are not in evidence. I objected

14  to those.  

15                THE COURT: They're not.

16  Mr. Neinast, anything else on

17  those?  

18                MR. NEINAST: I don't know, what

19  else should there be? I mean, just to show --

20  their only purpose was to show that there are

21  other footwear injuries that are out there.

22                THE COURT: I'll accept it for

23  that, but I'm not going to admit the document.

24                MR. NEINAST: But only for that.


 1  That's fine.

 2                THE COURT: Generally, there are

 3  other cases out there that you're saying that

 4  involve footwear or lack there of involving foot

 5  injuries.

 6                MR. NEINAST: Okay. Thank you,

 7  Your Honor.

 8                MR. DOLIN: But not for the content

 9  of the synopses themselves.

10                THE COURT: No.

11                MR. NEINAST: Correct. That's

12  fine. That's fine with me.

13                MR. DOLIN: And then No. 12 are the

14  minutes of 3/17/10.

15                THE COURT: And that's admitted.

16                MR. DOLIN: And then the last one I

17  have is 17, which was the Eagle Gazette, which

18  was admitted as the photograph only.

19                THE COURT: There's 13. I have 13,

20  which is the commercial general liability

21  coverage form, the Erie Insurance Group policy.

22                MR. DOLIN: And I believe I

23  objected ---

24                THE COURT: You objected to a


 1  question about whether or not something was in

 2  there or not.

 3                MR. DOLIN: Correct.

 4                THE COURT: Ms. Steiner

 5  acknowledged that this is the policy, so I'll

 6  admit this. 

 7                MR. DOLIN: The question was

 8  whether or not there was anything in there

 9  against shoes. 

10                THE COURT: Right.

11                MR. DOLIN: Requiring footwear.

12                THE COURT: I'll admit the document

13  -- the document, for whatever it says in the

14  document, it's admitted into evidence.

15                MR. NEINAST: Okay.

16                THE COURT: And then 17 was the

17  Eagle Gazette. And I think there was an

18  agreement that that would come in, but only for

19  the photograph, but not the Eagle Gazette's ---

20                MR. DOLIN: Not the written

21  content, correct. 

22                MR. NEINAST: Right. Which is

23  totally irrelevant. 

24                MR. DOLIN: That's fine.


 1                THE COURT: So that's admitted.

 2                I just want to make sure we have

 3  all of those documents.

 4                So if the parties will, when we're

 5  finished, take however much time it takes to make

 6  sure that each of you have all of those exhibits

 7  and that the Bailiff, then, has all of those

 8  exhibits.

 9                And I may -- I know I said at one

10  point earlier today that I was thinking about or

11  going to direct the parties to provide proposed

12  findings of fact and conclusions of law. But I'm

13  not certain that I'm going to do that at this

14  point. If I decide to do that, then I will

15  notify everybody in writing and give you the due

16  date. I'll probably have a simultaneous filing

17  date. I may not require that at this point.

18                Is that a problem? I know I said

19  earlier that I may do that.

20                Mr. Neinast?

21                MR. NEINAST: That's fine with me.

22  I'll assuming you'll go back and look at like the

23  motions for summary judgment, other stuff that

24  have references to the -- no?


 1                THE COURT: No. I would only look

 2  at what's admitted into evidence in terms of

 3  documents and based on what the evidence, the

 4  testimonial evidence, that is, the testimony of

 5  all the witnesses. Those are the things that I'm

 6  confined -- those are the things that I'm

 7  confined to -- I'm restricted to look at.

 8                MR. NEINAST: Okay.

 9                THE COURT: In other words, what is

10  in evidence, the testimony and the documents.

11                MR. NEINAST: Okay. Just a

12  question. There are still those motions to take

13  judicial notice. I assume that will then be ---

14                THE COURT: I can rule on that as

15  part of -- I said this morning when we started

16  what my decision was on that, but ---

17                MR. NEINAST: Because I think that

18  the answer to that, if what I said was correct,

19  that really impacts what level of fiscal

20  integrity -- fiscal responsibility the library

21  really has.

22                THE COURT: I understand.

23                MR. NEINAST: Or fiscal exposure, I

24  guess I should say.


 1                THE COURT: Okay.

 2                Is there anything else?

 3                MR. DOLIN: So other than getting

 4  the exhibits together for the Court, which we'll

 5  do now ---

 6                THE COURT: We're finished.

 7                MR. DOLIN: --- we basically just

 8  sit tight and wait to hear back from the Court?

 9                THE COURT: Correct.

10                MR. DOLIN: Very good, Your Honor.

11                MR. NEINAST: Great. Thank you.

12                (Proceedings recessed.)

13                THE COURT: There's been one other

14  matter that's been brought to my attention.

15                Defendant had Exhibits 12 and 13

16  that were marked for identification. But you're

17  not asking that they be admitted into evidence;

18  is that correct?

19                MR. DOLIN: That's correct.

20                THE COURT: Okay. Very well. Then

21  I won't consider those as evidence.

22                MR. DOLIN: They were used in

23  cross.

24                THE COURT: Right. To the extent


 1  that they were used with testimonial evidence, I

 2  can consider that; but as far as the documents

 3  themselves, I'll not consider them.

 4                MR. NEINAST: Right. Rule of

 5  Evidence 803.18.

 6                THE COURT: Okay. Thank you.

 7                (Proceedings adjourned.)

 8                         - - -


















State of Ohio         :
                      : SS:
County of Fairfield   :

               C E R T I F I C A T E

              I do hereby certify that the foregoing

is a true and correct transcript of the proceedings

in the aforecaptioned case, Case No. 09-CV-0657/

11-CA-26, held on March 8th, 2011, as transcribed

by me, to the best of my ability, from an

electronic recording furnished to me by the Common

Pleas Court of Fairfield County, Ohio.

              In witness whereof, I have hereunto
set my hand and affixed my Notarial seal this 26th
day of   April  , 2011.

                         /s/ Janice A. Fry   
                         JANICE A. FRY
                         Notary Public in and for
                         the State of Ohio;
                         Official Court Reporter
                         Fairfield County
                         Common Pleas Court.

My commission expires
June 25, 2011.

                        - - -