IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO - - - ROBERT NEINAST, : Plaintiff, : vs. : Case No. 09-CV-0657 BOARD OF TRUSTEES, : 11-CA-26 FAIRFIELD COUNTY DISTRICT : LIBRARY, : Defendant. : - - - TRANSCRIPT OF PROCEEDINGS 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)
APPEARANCES: 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 WITNESSES DIRECT CROSS REDIRECT RECROSS 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 affidavit/Steiner Plaintiff's Exhibit No. 10 174 174 affidavit/Steiner 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 photos 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. 16 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 14 BY MR. NEINAST: 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 - - - 24
1 RECROSS-EXAMINATION 2 BY R. NEINAST: 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 12 BY MR. NEINAST: 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. 24
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. 24
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 - - - 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO - - - ROBERT NEINAST, : Plaintiff, : vs. : Case No. 09-CV-0657 BOARD OF TRUSTEES, : 11-CA-26 FAIRFIELD COUNTY DISTRICT : LIBRARY, : Defendant. : - - - TRANSCRIPT OF PROCEEDINGS 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) 18 BY MR. NEINAST: 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 - - - 21 22 23 24
1 PETER VANDERVOORT 2 being first duly sworn, testified as follows: 3 DIRECT EXAMINATION 4 BY MR. NEINAST: 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 - - - 24
1 REDIRECT EXAMINATION 2 BY MR. NEINAST: 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 12 BY MR. NEINAST: 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 14 BY MR. NEINAST: 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 22 BY MR. NEINAST: 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 - - - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
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. - - -