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1 THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND
2 FOR BROWARD COUNTY, FLORIDA
3 CASE NO: 05-17386 CACE (21)
4 PAUL RENNEISEN and PATRICIA RENNEISEN,
5
6 Plaintiffs,
7 vs.
8 RICHARD STEVEN MAGILL and LISA A. MAGILL,
9 Defendants.
10 ______________________________)
11
12
13 * * * DEPOSITION OF RICHARD STEVEN MAGILL
14
15 Fort Lauderdale, Florida
16 March 31, 2006, 2:15 o'clock p.m.
17
18 APPEARANCES
19 LAW OFFICE OF DAVID M. SCOTT, P.A., BY: DAVID M. SCOTT, ESQUIRE,
20 8551 West Sunrise Boulevard, Suite 210, Plantation, Florida 33322
21 Appearing along with his client, Paul Renneisen.
22 GREEN, ACKERMAN & FROST, P.A.
23 BY: RAND ACKERMAN, ESQUIRE, 1200 North Federal Highway, Suite 301
24 Boca Raton, Florida 33432, Appearing along with his clients, Richard and
25 Lisa Magill.
2
1 I N D E X, WITNESS DIRECT
2 RICHARD MAGILL
3
4
5
3
1 Deposition of Richard Magill, a witness of lawful
2 age, taken on behalf of the Plaintiff herein, for the
3 purpose of discovery and for use as evidence in the
4 above-entitled matter, pending in the Circuit Court of the
5 17th Judicial Circuit, in and for Broward County, Florida,
6 pursuant to notice heretofore filed, before Christine A.
7 Hopwood, a Notary Public within and for the State of
8 Florida at Large, at the Office of Klein Bury &
9 Associates, 888 Southeast 3rd Avenue, in the City of Fort
10 Lauderdale, County of Broward, State of Florida, on the
11 31st day of March, 2006, commencing at or about 2:15
12 o'clock p.m.
13 * *
14 THEREUPON:
15 RICHARD MAGILL
16 a witness of lawful age, being called as a witness by the
17 Plaintiff, having been duly sworn, as hereinafter
18 certified, deposed and testified as follows:
19 DIRECT EXAMINATION
20 BY MR. SCOTT:
21 Q State your name for the record please.
22 A Richard Magill.
23 Q Where do you reside?
24 A 2720 Southeast 14th Street, Pompano Beach.
25 Q Where are you employed?
4
1 A Service Planning Corporation.
2 Q Where is that?
3 A Pompano Beach, Florida.
4 Q What do you do for them?
5 A I'm in sales.
6 Q What do you sell?
7 A Employee benefits.
8 Q How long have you worked there?
9 A Probably the early 90s.
10 Q Where did you work before then?
11 A Did the same thing for a gentleman up in Tampa.
12 Q Who was that?
13 A The Robertson Insurance Agency.
14 Q How long did you work there?
15 A Actually I worked there for two years. And I'm
16 going to take that back. I worked doing the same thing
17 for a place in Coral Springs, South Florida Financial
18 Consultants for five years. And then the rest of the time
19 was Service Planning Corporation.
20 Q Have you ever owned any boats prior to the
21 vessel, Careless Navigator?
22 A Yes.
23 Q What were they?
24 A The one prior to this was a twenty-three Well
25 Craft. Prior to that I think it was a twenty foot center
5
1 console. I had a formula type boat for a little while. I
2 had a bow rider for a little while.
3 Q When did you first get the Well Craft?
4 A I couldn't tell you.
5 Q How long did you have it?
6 A More than five years.
7 Q And the twenty foot center console?
8 A I couldn't tell you.
9 Q More than a year?
10 A Probably.
11 Q The formula, what type of boat is that?
12 A It was an off brand. I couldn't tell you what
13 it was.
14 Q What's its top speed?
15 A Probably thirty to thirty-five miles an hour.
16 It just had one outboard on it.
17 Q And the bow rider?
18 A The bow rider had an eighty-five horsepower
19 engine on the back of it.
20 Q Let me just digress for a moment. You were
21 present during the deposition of your wife just a moment
22 ago, correct?
23 A Yes.
24 Q Is there anything she testified to that you
25 disagree with?
6
1 MR. ACKERMAN: Object to form.
2 BY MR. SCOTT:
3
You can answer.
4 A Yeah. Actually it wasn't -- it wasn't Sea Tow
5 that showed up. It was Boat US. And what happened was,
6 is I have tow insurance with Sea Tow, so at the end of
7 the night I requested that Sea Tow come impound my boat
8 rather than Boat US.
9 Q While we're talking about tow boats, at what
10 point did the first tow boat arrive after the accident?
11 A I couldn't tell you.
12 Q Did you call them?
13 A No, I did not.
14 Q Do you have any idea how it was that they were
15 alerted to this accident?
16 A I know that he called a Mayday into the coast
17 guard.
18 Q He being the Plaintiff?
19 A Yes. I'm sorry. I can't pronounce his last
20 name.
21 Q Did you know the operator of the vessel from
22 Boat USA that arrived?
23 A No, I did not.
24 Q Had you ever met him before?
25 A No, I had not.
7
1 Q So what type of boat is the Careless Navigator?
2 A It's a thirty foot Proline Walk Around.
3 Q How long have you had it?
4 A I think we bought it in 2002, bought it used.
5 Q How much did you pay for it; do you recall?
6 A No. I don't know.
7 Q How often do you take it out?
8 A I would say probably once or twice a week.
9 Q Do you know what its top speed is?
10 A I have never had it -- probably forty miles an
11 hour.
12 Q You've never traveled at forty miles per hour in
13 that boat?
14 A I have. And that's with the throttles down all
15 way and flat seas and everything just right.
16 Q Would the vessel be on a plane at forty miles
17 per hour?
18 A What do you mean by a plane?
19 Q By a plane I mean on top of the water without
20 slashing through the waves?
21 A I'm not sure.
22 Q Do you not know what a plane is?
23 A I'm not sure what you mean by that. I mean,
24 it's a pretty heavy boat, so it's always going up and
25 down.
8
1 Q Have you ever taken any boating courses?
2 A Yes, I have.
3 Q Can you tell me what they were?
4 A Before I bought my first boat, I believe it was
5 coast guard auxiliary.
6 Q Approximately when was that?
7 A Late 80s, early 90s.
8 Q Did you receive a certificate of completion?
9 A Yes, I did.
10 Q Do you still have it?
11 A I don't know.
12 Q Any other boating courses?
13 A Not that I can think of.
14 Q Safety courses?
15 A Not that I can think of.
16 Q Not that you can think of or you just don't
17 know?
18 A I don't know.
19 Q If you were to try to find out whether you've
20 ever completed any boating safety courses, what steps
21 would you take to ascertain that?
22 A I have no idea.
23 Q Do you have a radio on your boat?
24 A I have a stereo radio and a VHF radio.
25 Q Was the VHF operating on April 17th and April
9
1 18, 2004?
2 A Yes.
3 Q Did you utilize it at all
4 A Yes.
5 Q Who did you call?
6 A Well, we don't really use the radio a whole lot,
7 so I opened up the hatch where it's at. After we had
8 tried to call out to them a couple of times, they wouldn't
9 respond to us. And when I turned it on, I heard them
10 calling in a Mayday to the coast guard.
11 When they were done, I asked them if they were
12 okay. I didn't hear any response. And the next time it
13 was used after that was the police officer when he boarded
14 my boat.
15 Q Let's go back to the time that you left your
16 house the evening of April 17, 2004, the night of the
17 accident or immediately before the accident. I take it
18 you went to the Taft Room.
19 MR. ACKERMAN: I think it's the Tap Room, T-A-P.
20 THE WITNESS: Correct.
21 BY MR. SCOTT:
22 Q Prior to your leaving your house, how much
23 alcohol had you consumed?
24 A One drink that wasn't even finished by the end
25 of the night.
10
1 Q Did you take that drink with you on the boat?
2 A Yes, I did.
3 Q Were you consuming it while you were operating
4 the boat?
5 A I had some sips out of it, yes.
6 Q That drink, what was it?
7 A It was a rum and coke.
8 Q And it stayed on the boat the entire night?
9 A Yeah. As a matter of fact the reason I know it
10 wasn't finished is because it was still on the boat when
11 we got it back from impound.
12 Q Was it full?
13 A It was probably half, maybe a quarter.
14 Q Was it sitting in some type of cup holder?
15 A Yes.
16 Q So while you were at the Tap Room, what did you
17 have to drink
18 A Probably a diet coke.
19 Q No alcohol?
20 A No.
21 Q Who paid for the tab there that night?
22 A I don't know.
23 Q If it were you, would you have used a credit
24 card or paid cash?
25 A I do both. It depends upon whether I have cash
11
1 on me or not.
2 Q Do you remember what you had to eat?
3 A No, I do not.
4 Q Do you remember how long you were there?
5 A Maybe an hour.
6 Q More than an hour?
7 A I don't know.
8 Q So after you left the Tap Room, you went where?
9 A Took the dog for a walk. And then the next
10 place that we actually went to was Treasure Trove.
11 Q Did you have anything to drink there?
12 A Yes.
13 Q Do you recall approximately what time you
14 arrived there?
15 A No. I couldn't tell you that.
16 Q Is that your cell phone?
17 A Yeah, sorry about that.
18 Q That's okay. Do you recall whether you went to
19 the restroom from the time you left your house and the
20 time you arrived at the Treasure Trove?
21 A No. I couldn't tell you that.
22 Q Do you recall whether your wife went to the
23 restroom?
24 A No. I couldn't tell you that.
25 Q I'm sorry. You stated you don't recall whether
12
1 you had anything to drink at the Treasure Trove or you did
2 have something to drink there?
3 A I think I had one drink there.
4 Q Do you recall what it was?
5 A Rum and coke.
6 Q Did you finish it?
7 A I couldn't tell you that.
8 Q Did you take it with you when you left?
9 A No, I did not.
10 Q Did you have a bottle of wine on the boat that
11 night?
12 A Yes.
13 Q Was it there when you picked up the bottle later
14 on after they impounded it?
15 A I couldn't tell you that.
16 Q Do you recall where it was when the police
17 officers arrived on the scene?
18 A No.
19 Q Could it have been on the floor of the boat on
20 the deck?
21 A I think the police report said it was in the
22 cooler.
23 Q After you left the Treasure Trove, then what did
24 you do?
25 A Took the dog for a walk. This time just a
13
1 little bit longer. Let her run on the beach a little bit.
2 Q Then where did you go?
3 A Back to the boat.
4 Q And then you departed?
5 A Correct.
6 Q Well, I'm going to ask you a few questions that
7 are the same questions I asked your wife. You heard her
8 answers. And you've already testified that you don't
9 disagree with anything that she had to say. Is that
10 correct?
11 MR. ACKERMAN: Object to the form.
12 THE WITNESS: Not that I'm aware of.
13 BY MR. SCOTT:
14 Q Well, then we'll just go through the questions
15 one at a time then. How fast were you traveling in the
16 fifteen minutes prior to the accident?
17 A Well, actually I guess I do have a few different
18 answers. The area from -- it's a slow speed at Oakland
19 Park Boulevard to Commercial. It isn't a huge area, so
20 fifteen minutes prior was probably the previous slow zone.
21 Q What do you think the maximum speed you attained
22 at any time after you left the Treasure Trove and prior to
23 the accident was?
24 A Definitely less than twenty miles an hour.
25 Q So it's your testimony here today that at no
14
1 point between the time you left the Treasure Trove and the
2 time of the collision were you traveling faster than
3 twenty miles an hour?
4 A Absolutely.
5 Q When did you first see Mr. Renneisen's sailboat
6 if at all?
7 A Pretty -- definitely less than a minute before
8 the collision.
9 Q Do you recall whether you were in a no speed or
10 an idle speed area or any other area where it restricted
11 your speed?
12 A No. It was south of the no wake sign.
13 Q Where is that no wake sign?
14 A Not far before you get to the bridge, there's
15 Benihanas. It's probably like right before you get to
16 Benihanas, you've got the sign and then Benihanas and then
17 the bridge.
18 Q So if you were south of the no wake sign, then
19 you had not yet seen it yet, correct?
20 A No. Well, I guess the bottom line is I boat in
21 there so much, I know where the signs are. I don't need
22 to see them. I know where they're at.
23 Q In the middle of the night?
24 A Like I said, you can tell from the buildings
25 that are on the side of the intercoastal. It's kind of a
15
1 no brainer. It's a very narrow waterway right there.
2 Q So I take it then your testimony is here today
3 that or would you agree or disagree that you knew exactly
4 where you were at the time of the collision?
5 A I can tell you that I was south of the no wake
6 sign.
7 Q Well, let's take a look at what has been marked
8 previously as Plaintiff's Exhibit 3 and your wife Mrs.
9 Magill has not made any notions other than the north
10 indicator. And I would ask you to please point out, if
11 you can, where you believe the incident, the collision
12 occurred?
13 A I can't tell from that. Like I said it's -- I
14 can tell from the buildings on the side of the water, but
15 I can't tell from this map.
16 Q Then perhaps you can describe for me which
17 buildings were you on your left side and which buildings
18 were on your right side at the point of the collision?
19 A It was just before we got to the Point
20 Condominium.
21 Q Just before, how far before?
22 A I couldn't tell you.
23 Q Five feet before?
24 A I couldn't tell you.
25 Q Ten feet before?
16
1 A I couldn't tell you.
2 Q When you passed whatever building is to the
3 south of the Point Condominiums or were you adjacent to
4 whatever building was to the south of the Point
5 Condominiums?
6 A I was south of the Point Condo no more than the
7 building south of that.
8 Q Mr. Magill, I'm going to ask you to assume that
9 the Point Condominium is right where this box that I'm
10 going to mark with an arrow. That's call that the Point.
11 A I can tell you right now that's not correct.
12 Q How is it that you know that's not correct?
13 A Because that's the first canal right there.
14 Q So the Point Condominium is not on the first
15 canal?
16 A I can tell you for sure that it was south
17 of -- like I said, I can't tell what's on your map, but I
18 can tell you without a doubt it was prior to that first
19 canal. No doubt about that.
20 Q Do you know where the Point Condominium is on
21 the north or south side of the canal that you think its
22 on?
23 A I don't know.
24 Q Could it be here? And I'll mark this box with
25 another Point Condominium and call that number two.
17
1 A I really don't know.
2 Q Let's assume that it's there. If this is the
3 Point Condominium right here. And I'm marking this with
4 point number two. Where in relation to that box that I've
5 placed there was your vessel at the time of the collision?
6 A Assuming that that's where the Point Condominium
7 is --
8 Q Assuming that that is the Point Condominium.
9 A Correct. I was south of that.
10 Q Can you draw a small circle with an arrow and
11 put a number one there please.
12 A I was behind it.
13 Q Put a number one next to that for me. Do you
14 recall whether you were in the middle of the canal or more
15 to the west or more to the east -- excuse me, strike that.
16 Do you recall whether you were in the middle of the
17 intercoastal or more to the east or more to the west?
18 A Probably the middle.
19 Q The no speed wake -- strike that. The idle
20 speed zone, no wake zone, does it cover the entire canal?
21 A What do you mean by the entire canal.
22 Q In other words, does it go from bank to bank?
23 A Yeah.
24 Q Does it cover the entire intercoastal from bank
25 to bank?
18
1 A From the east side to the west side, yeah.
2 Q So once you come to the sign that says no wake
3 or idle speed, from that point immediately past it any
4 where in the intercoastal is a no speed zone?
5 A Correct.
6 Q Your wife testified that she heard you yell. Do
7 you recall yelling?
8 A I know I said something. I couldn't tell you
9 what I said.
10 Q Relevant to that point when did you first see
11 the Plaintiff's vessel?
12 A I saw it right before I yelled.
13 Q What did you see?
14 A I saw a sailboat.
15 Q How do you know it was a sailboat?
16 A Because by the time I was close enough to see
17 it -- the intercoastal is very narrow there, so the lights
18 from the side of the intercoastal can illuminate what's
19 there. So that's why I was able to see it is from the
20 lights on the side of the intercoastal.
21 Q I take it your testimony is today that you
22 believe there were no lights on the sailboat at the time?
23 A Correct. Well, visible from the rear of the
24 boat, correct.
25 Q How was the sailboat positioned relative to your
19
1 vessel?
2 A Probably (indicating) if this is the
3 intercoastal, it was probably at a slight angle.
4 Q Why don't we do this. Why don't we ask you with
5 Counsel's permission to draw your boat and the sailboat.
6 MR. ACKERMAN: He's not going to draw anything.
7 MR. SCOTT: He's not going to draw anything?
8 MR. ACKERMAN: No.
9 MR. SCOTT: Certify that.
10 MR. ACKERMAN: I don't think he's required to
11 draw something for a deposition.
12 MR. SCOTT: Well, I'm just trying to get him to
13 give me in descriptive terms rather than using his
14 hands as to what position the sailboat was relative
15 to his boat.
16 MR. ACKERMAN: He'll testify to it. And you can
17 ask him like we do in deposition, ask him the
18 questions. And he'll describe it to the best of his
19 ability.
20 BY MR. SCOTT:
21 Q Can you describe it in more detail in more
22 descriptive terms how your vessel was positioned relative
23 toward the sailboat?
24 A At which time.
25 Q At the point where you first saw it?
20
1 A When I first saw it, I was heading straight
2 toward the bridge. And his boat was straight or if
3 anything at a slight angle, so the front of his boat would
4 have been a little bit west. And the back of the boat
5 would have been a little bit east.
6 Q So the front of his boat, the Plaintiff's boat,
7 would be further away from you than the rear?
8 A Front of the boat was closer to the middle of
9 the intercoastal. And the rear was further away from the
10 middle.
11 Q Which was closer to you, the rear or the front
12 of the Plaintiff's boat?
13 A The rear. I came up from behind it.
14 Q Which direction was the sailboat pointing, east
15 or west or northeast or northwest?
16 A Basically it was pointing north, but if anything
17 north slightly northwest.
18 Q What part of it did you collide with?
19 A The rear left side.
20 Q What happened at the point when you collided
21 with the other vessel? Where did your boat go and where
22 did the other boat go?
23 A Well, when you I saw it, I threw my engines in
24 reverse. Like Lisa said one of the engines stalled out,
25 so we hit it, bounced off a little bit toward the west.
21
1 And then I started the engine, came back around.
2 Q Do you recall where your wife was when you first
3 noticed the vessel, the other vessel?
4 A When I first -- well, up until I noticed the
5 vessel the two girls were talking behind me. That's all I
6 can tell you.
7 Q And when you screamed out, do you know where
8 your wife was?
9 A Everything happened so quick then.
10 Q Did she ever come to your side?
11 A Yeah, at some point.
12 Q Before the accident in the seconds prior to the
13 accident?
14 A I can't answer that.
15 Q She couldn't have been standing next to you?
16 A I can't answer that.
17 Q But you just said that prior to the accident you
18 know she was sitting behind you?
19 A Yeah. When I'm driving the boat especially at
20 night I'm always looking behind me to see if there's any
21 boats coming up from behind me. So I'm, you know,
22 constantly looking around. So I know they were in the
23 back of the boat. That's all I can tell you.
24 Q But at no time you recollect her standing next
25 to you at the helm?
22
1 A I couldn't tell you if she was or if she
2 wasn't.
3 Q Had you at any point asked any of them to act as
4 a lookout for you?
5 A Not in that area to my recollection.
6 Q So other than throwing the engines in reverse,
7 what actions other than that did you take to avoid the
8 collision?
9 A I turned my wheel to the left. And I threw my
10 engines in reverse.
11 Q Do you understand as the operator of a motor
12 vessel that it is your obligation under the navigation
13 rules to avoid and give way to sailing vessels?
14 A Yes.
15 Q You understand that?
16 A Yes.
17 Q Have you ever read the navigation rules before?
18 A When I took my boating safety class, things like
19 that were discussed.
20 Q Do you have a copy of the navigation rules on
21 board your boat?
22 A No, I do not.
23 Q Do you own a copy of the navigation rules?
24 A I don't know.
25 Q You don't know or you don't recall?
23
1 A I don't recall.
2 Q Do you recall ever specifically purchasing or
3 obtaining a copy of the navigation rules after you took
4 the boating course?
5 A Not after I took my boating course.
6 Q Do you have any charts on board?
7 A Yes.
8 Q At the time of the incident?
9 A Yes.
10 Q What charts did you have on board at the time of
11 the incident?
12 A We keep charts on our boat for all different
13 areas, the Bahamas, Florida.
14 Q How fast -- strike that. What do you understand
15 to be the maximum speed that you can proceed through the
16 idle speed zone just south of the Commercial bridge?
17 A South of the idle speed zone?
18 Q In the idle speed zone which is just south of
19 the Commercial bridge, what do you understand to be the
20 maximum speed that you can proceed through there?
21 A Fast enough to make your boat go through the
22 current without throwing off a wake.
23 Q I believe you answered interrogatories stating
24 that you believe that the Plaintiff's vessel was idling
25 and probably traveling at a speed less than two miles per
24
1 hour at the time in a southerly direction?
2 A Correct.
3 Q You were traveling north?
4 A Correct.
5 Q When you collided with the Plaintiff's vessel,
6 you collided with his aft?
7 A Correct.
8 Q So I take it then that your testimony is in
9 order for the Plaintiff's vessel to be traveling in a
10 southerly direction that he was backing down?
11 A What do you mean by backing down?
12 Q Going in reverse?
13 A Yes.
14 Q Upon what do you base that opinion?
15 A There was a big yacht that was getting ready to
16 come through the bridge, so my belief is that he was
17 giving way to the boat.
18 Q How did you know that there was a big yacht
19 coming through the bridge?
20 A We saw it after the accident.
21 Q So your opinion that the Plaintiff's vessel was
22 backing down at the time of the incident is based upon
23 facts you gathered after the accident?
24 A Yes.
25 Q So you never saw him backing down or going in
25
1 reverse?
2 A No.
3 Q You also state that you believe he was probably
4 traveling at a speed less than two miles an hour, correct?
5 A Sure.
6 Q Is it your opinion that he was traveling at a
7 speed at all or at one mile per hour or two miles per
8 hour? What do you base that assertion on?
9 A He was moving at a slow speed. I couldn't tell
10 you what the speed is.
11 Q How much time transpired between the time you
12 first saw him and the time you struck him?
13 A Not a lot.
14 Q In seconds?
15 A I couldn't tell you.
16 Q Well, let's explore that for a second because
17 your wife testified earlier as I'm sure you know that
18 approximately two seconds occurred between the time you
19 screamed and the time you collided with the boat.
20 MR. ACKERMAN: Object to the form.
21 BY MR. SCOTT:
22 Q Assuming that to be her testimony do you agree
23 or disagree with that?
24 A I don't know.
25 Q Could it have been less than five seconds
26
1 between the time that you --
2 A Could have been.
3 Q -- first noticed the boat and the time that you
4 collided with it
5 A Could have been. I mean, these things happen so
6 quickly. I really couldn't tell you how much time there
7 was.
8 Q What I'm trying to get at, Mr. Magill, is that
9 upon what factual basis do you base your opinion that the
10 Plaintiff's vessel was moving?
11 A The only fact that I have is that -- that other
12 boat was coming through the bridge. After the accident
13 happened, the bridge opened. And the other boat came
14 back.
15 Q So given that as you sit here today you have no
16 personal knowledge that the Plaintiff's vessel was moving
17 at all at the time you struck it; is that correct or
18 incorrect?
19 A I don't have any proof.
20 Q Can you describe the damage your boat suffered
21 as a result of the collision?
22 A Yeah. A piece of rail, I believe it was from
23 his boat, was lodged in the side of my boat.
24 Q Which side?
25 A The right side.
27
1 Q Right forward or right aft?
2 A Right forward.
3 Q The right being the starboard side?
4 A Correct.
5 Q Do you know what that piece of metal was? Can
6 you describe it?
7 A I think it was called an anchor roller. It was
8 a piece of aluminium about this wide.
9 Q You're indicating about three inches wide.
10 A Okay.
11 Q I'd like to show you what I'll ask the court
12 reporter to mark as Plaintiff's Exhibit 5 and ask you if
13 you recognize that photograph.
14 A Uh-huh.
15 Q What is that photograph of?
16 A This is my boat. And it's a picture of the
17 piece of aluminium from his boat.
18 Q Incidently was that photograph used as an
19 exhibit at your criminal trial?
20 A Not to my knowledge.
21 Q What speed -- forgive me if I ask this again.
22 What speed do you believe your vessel was traveling at the
23 time you collided with the Plaintiff's boat?
24 A Definitely less than ten miles an hour.
25 (Thereupon, after a brief discussion off the
28
1 record, the following proceedings were had:)
2 MR. ACKERMAN: So let's put on the record as to
3 Exhibit 1 I'm in agreement that Mr. Scott will retain
4 the original and hold that until trial.
5 MR. SCOTT: Okay.
6 BY MR. SCOTT:
7 Q Mr. Magill, I'd also like to show you what I'll
8 ask the court reporter to mark as Plaintiff's Exhibit 6
9 and ask if you recognize that photograph.
10 A It's a picture of my boat.
11 Q Is that the same piece of metal that was
12 sticking out in Plaintiff's Exhibit 5?
13 A It looks like it.
14 Q Now, at the time of the collision or shortly
15 thereafter there came a time when police officers arrived
16 on the scene, correct?
17 A Yes.
18 Q Were you arrested that night?
19 A Yes.
20
Q What were you charged with?
21 A I believe boating under the influence and
22 property damage. I'm sure you have a copy of it.
23 MR. SCOTT: Rand, will you stipulate to the
24 admissibility of these police reports?
25 MR. ACKERMAN: Admissibility in terms of what?
29
1 MR. SCOTT: This is off the record.
2 (Thereupon, after a brief discussion off the
3 record, the following proceedings were had:)
4 BY MR. SCOTT:
5 Q Mr. Magill, I'd like to show you a document that
6 I'll ask the court reporter to mark as Plaintiff's Exhibit
7 7 and ask if you recognize that document.
8 A I don't recognize it, but I guess it's -- I
9 mean, it's got the information from the accident that
10 night.
11 Q Well, for the record we'll call this the driver
12 report of traffic crash, in other words, the police report
13 that was filled out by the police at the time of the
14 incident.
15 MR. ACKERMAN: For the record the witness does
16 not recognize that document. And Mr. Scott is
17 identifying it on his own for the record.
18 MR. SCOTT: Of course.
19 BY MR. SCOTT:
20 Q I'd also like to show you what I would ask to be
21 labeled as Plaintiff's Exhibit 8. And ask you if you've
22 ever seen that document before. And yes, it is the same
23 document.
24 MR. ACKERMAN: The same as seven?
25 MR. SCOTT: Yes, with a minor difference that
30
1 I'll get into in a moment.
2 THE WITNESS: Yeah. I think I've seen this one.
3 BY MR. SCOTT:
4 Q What I'd like to ask you is, if you know, do you
5 have any knowledge as to how under name of vehicle owner
6 the words passenger and Ms. Magill's name is circled on
7 this one, but it is not on this one?
8 A No clue.
9 Q No idea?
10 A Unh-unh
11 Q So your testimony here today is that between
12 6:00 o'clock p.m. and the time of the accident you
13 consumed a partial rum and coke and another rum and coke
14 later on?
15 A Correct.
16 Q And you had no other alcohol to drink that night
17 prior to the incident?
18 A Correct.
19 Q What about prior to 6:00 o'clock on that
20 evening?
21 A No, nothing during the day.
22 Q And you were acquitted of the charges against
23 you at your trial, were you not?
24 A Yes.
25 Q Have you ever had any other alcohol related
31
1 incidents in the past?
2 A Yes.
3 Q Regarding law enforcement?
4 A Yes.
5 Q Can you tell me about those?
6 A Many years ago I had a boating incident. And
7 the charges against me were dropped from that.
8 MR. ACKERMAN: So tell him about how many years
9 ago it was, so we have that for the record.
10 THE WITNESS: Probably fifteen years ago. I
11 wasn't driving the boat. And the police admitted
12 that I wasn't driving the boat, so the following day
13 the charges were dropped against me.
14 BY MR. SCOTT:
15 Q And you were charged with boating under the
16 influence?
17 A Correct, but they knew that I wasn't driving the
18 boat. But I was the owner of the boat.
19 Q Do you recall whether charges were officially
20 filed against you or whether --
21 A I was arrested. And then the next day the
22 charges were dropped. I don't know what you would call
23 that.
24 Q You never made any official court appearances
25 for that?
32
1 A Nothing.
2 Q Who told you the charges were dropped?
3 A I don't know.
4 Q Any other alcohol related incidents?
5 A Yes.
6 Q Can you describe that for me please.
7 A Yeah. I had -- probably eight to ten years ago
8 I was driving home from dinner. And a police officer was
9 on the side of the road, opened up the car door. I
10 swerved to avoid him. And he arrested me. And I was also
11 found not guilty.
12 Q What were you charged with?
13 A I guess it was a DUI.
14 Q Driving under the influence of alcohol?
15 A I believe so.
16 Q Were you found not guilty by an jury?
17 A Yes.
18 MR. ACKERMAN: Excuse me one second.
19 (Thereupon, after a brief recess, the following
20 proceedings were had:)
21 BY MR. SCOTT:
22 Q So aside from that last DUI any other alcohol
23 related incidents?
24 A Not to my knowledge.
25 Q And aside from these two incidents have you ever
33
1 been arrested before?
2 A Not to my knowledge.
3 Q You don't recall whether you've ever been
4 arrested?
5 A No, I haven't.
6 Q So that's a no?
7 A Yes.
8 Q Have you ever been pulled over by a police
9 officer and questioned regarding your alcohol consumption?
10 A No.
11 Q Aside from these two incidents?
12 A No.
13 Q You're obviously aware that the consumption of
14 alcohol can impair your senses, correct?
15 A Yes.
16 Q And your reaction time?
17 A Yes.
18 Q And you're also aware that it is illegal to
19 operate a boat while under the influence of alcohol,
20 correct?
21 A Yes.
22 Q Despite the fact that you had consumed alcohol
23 that night, you still consciously chose to operate your
24 vessel?
25 A To my knowledge that's not illegal.
34
1 Q You weren't under the influence of any drugs
2 that night, were you?
3 A No.
4 Q Medication?
5 A No.
6 Q Did you have a navigation system on board your
7 boat the night of the accident?
8 A Yes
9 Q What was it? Describe it for me.
10 A Well, when we purchased the boat, it had a GPS.
11 Since then we put on a GPS map plotter, so it now has two.
12 I don't know if the second one was added before or after
13 the accident.
14 Q Do you know how to operate it?
15 A Yeah.
16 Q Can you describe how you operate that piece of
17 equipment?
18 A You turn it on. The GPS, you know, gives you
19 all different types of information. The map plotter is a
20 little bit better because it actually shows you charts on
21 top of the GPS.
22 Q You also state that you believe that the
23 Plaintiff's vessel did not have adequate lighting. And
24 correct me if I'm wrong, your basis for that is that you
25 saw no lights on the boat?
35
1 A Correct. Correct. I didn't see the boat until
2 I was close enough that the lights from the side of the
3 intercoastal. And that's when I was able to see it.
4 Q Could it be that perhaps the lights from the
5 intercoastal were blinding you and you couldn't see the
6 lights on the boat?
7 A I boat quite a bit. That's not been a problem
8 before.
9 Q You've never had any difficulty with the lights
10 from the intercoastal impairing your vision?
11 A N
12 Q Could they perhaps?
13 A Sure, anything is possible.
14 Q You said that you're familiar with this area.
15 So is it safe then to presume that you know or knew that
16 other vessels might be stopped waiting for the bridge to
17 open
18 A Sure.
19 Q At what point did you reduce your speed down to
20 below ten miles an hour?
21 A Well, I reduced it the first time as I started
22 approaching the no wake zone. And then the second time I
23 slowed down was when I saw the boat and threw the engines
24 in reverse.
25 Q How fast do you believe you were traveling when
36
1 you first began to slow down?
2 A When I was at full speed between the previous no
3 wake and this one, I wasn't going more than fifteen miles
4 an hour.
5 Q How long after the accident did you have your
6 boat repaired?
7 A I don't know.
8 Q Was it less than a week?
9 A No.
10 Q More than a week?
11 A Yes.
12 Q More than two weeks?
13 A Probably.
14 Q You took pictures, correct?
15 A Yeah.
16 Q Do you recall how many pictures you took?
17 A No
18 Q Do you recall how long it took you to take the
19 pictures?
20 A A minute.
21 Q Do you know where the pictures are currently
22 stored?
23 A Yes.
24 Q Where?
25 A On a computer.
37
1 Q Will you agree to preserve these photographs
2 should they be determined to be admissible and
3 discoverable in this case?
4 A Sure.
5 Q By preserve I mean not delete any electronic
6 files, digital files or in any way harm them in their
7 present state or in the state that they were at the time
8 of the accident or excuse me, at the time that you took
9 them.
10 A Yeah. It's pretty much no different than the
11 pictures you already have, but yes
12 Q When you showed them to your attorney Mrs.
13 Jaffe, did you give her copies or did you just show them
14 to her
15 A I don't remember if she kept them or not.
16 Q Do you remember whether any of them were used at
17 your criminal trial?
18 A I don't think they were.
19 Q Do you recall who testified at your crime trial?
20 A I believe Mr. Renneisen and I know at least one
21 of his sons. I don't know if it was one or both.
22 Q Anyone else?
23 A Not that I remember. Oh, law enforcement.
24 Q Any other witnesses?
25 A Not to my -- no.
38
1 Q Did Ms. Brennan testify?
2 A No.
3 Q And your wife did not testify?
4 A No.
5 Q So the only people that testified in that case
6 were Mr. Renneisen, possibly his son, and law enforcement
7 personnel that were there at the scene?
8 A I think so, yes.
9 Q Do you recall your wife coming up to you and
10 making statements to the police while they were
11 questioning you?
12 A Coming up to me?
13 Q Or coming up and speaking to the police?
14 A Yes.
15 Q Do you recall your saying to her to shut up?
16 A I don't know if I used the word shut up, but at
17 that point I was telling them that I didn't want to say
18 anything without an attorney.
19 Q What was your motivation in telling her not to
20 speak?
21 A Because I wanted an attorney present.
22 Q Do you have a concealed weapons permit?
23 A No, I don't.
24 Q Do you ever had one?
25 A No, I have not.
39
1 Q Do you own any firearms?
2 A No, I do not.
3 Q At what point did you determine that there were
4 no other injured parties to the accident?
5 A Well, I only know on my boat there were no
6 injuries. We yelled out to the other boat once or twice.
7 And we called on the radio once, but they didn't answer
8 us.
9 Q After you called out to them and did not receive
10 an answer, what did you do if anything?
11 A I waited for the law enforcement officers to
12 show.
13 Q Your vessel was operable at the time?
14 A Yeah, other than the one engine stalling.
15 Q You didn't drive over to the other boat to see
16 if anyone was injured, did you?
17 A No. They were -- like I said, we tried to
18 contact them by radio and by voice, but they weren't
19 responding to us. So at that point we just stayed, you
20 know, in our area.
21 The impact wasn't that great. I mean, my dog
22 was on the bow of my boat and nothing happened, so we just
23 assumed that everybody was okay.
24 Q But you didn't rule out the fact that someone
25 could have been injured?
40
1 A I assumed that nobody was.
2 Q When Boat US you say it was arrived?
3 A The first boat to show up was Boat US.
4 Q What did they do at that time?
5 A They came to our boat with a law enforcement
6 officer.
7 Q On board the Boat US or a separate boat?
8 A No. The Boat US brought the law enforcement
9 officer with him.
10 Q And they boarded your boat?
11 A The officer did, not the Boat US person.
12 Q At any time did Boat US come on board your boat?
13 A Not to my recollection.
14 Q What about Sea Tow, did Sea Tow arrive?
15 A Sea Tow came after I was already gone.
16 Q You never saw Sea Tow?
17 A No. I never saw them. I just requested that
18 Sea Tow come to take my boat rather than Boat US.
19 Q And you requested this to the law enforcement
20 officer?
21 A Uh-huh.
22 Q Do you know any one at Sea Tow?
23 A No, I don't. I'm just a member. I don't even
24 think I've ever had to use them before.
25 Q Other than your wife and your passenger, did you
41
1 personally know anyone else on the scene that night?
2 A No.
3 Q Have you discussed your testimony at all with
4 Claudia Brennan?
5 A Not testimony. I mean, we've talked about what
6 happened that night. It's been two years.
7 Q When's the last time you spoke with Claudia
8 Brennan?
9 A Probably yesterday.
10 Q What did you discuss?
11 A She had called us because of the subpoena that
12 she got. She was very nervous.
13 Q What did she say to you?
14 A Well, yesterday she called just to find out what
15 she needed to do today because when she first got the
16 subpoena she just said hey, you know, what's going on. We
17 told her that there was a lawsuit. And that she was going
18 to need to come talk because of what happened that night.
19 Q What did you tell her
20 A To be honest.
21 Q Did you suggest to her to say or not to say any
22 particular thing?
23 A No.
24 Q Did she ask you at any point and time what she
25 should say or not say?
42
1 A No.
2 Q When prior to yesterday did you speak to her
3 last?
4 A I talk to her almost every day.
5 Q How is it that you speak to her almost every
6 day?
7 A I'm the godfather of their child. And we've
8 been friends since we were very young.
9 Q Have you discussed your testimony here today
10 with anyone other than your lawyer?
11 A No.
12 Q With your wife?
13 A Again, we've talked about what happened that
14 night
15 Q Other than the photographs that you discussed
16 previously do you have any other photographs that you took
17 of your boat or the Plaintiff's boat after the incident?
18 A I have no photographs of his boat. I have a few
19 of my boat. And I took a couple of the intercoastal area
20 where the accident happened.
21 Q When did you do that?
22 A Probably a week after it happened.
23 Q Do you have those photographs?
24 A Not with me.
25 Q Do you have them at home?
43
1 A Same as the other, same digital camera.
2 Q Will you preserve those for me as well?
3 A (Witness nodding his head.)
4 Q Do you recall making a statement to the effect
5 that you had hit something while you were driving your
6 boat that night?
7 A I don't understand what you mean.
8 Q Did you ever make a statement say for instance,
9 I hit something to anyone that night?
10 A I knew what I hit, so I probably said that I hit
11 a sailboat.
12 Q Do you wear glasses?
13 A I wear contact lenses.
14 Q Did you have them on that night?
15 A Yes.
16 Q I'd also like to show you another photograph
17 which I'd ask the court reporter to mark as Plaintiff's
18 Exhibit 9. Ask if you recognize that photograph or
19 what's depicted in that photograph?
20 A Yeah. Actually the only time I've seen this is
21 the day of the trial. I saw a photocopy of it. It wasn't
22 this one. That's his boat. And I assume that's the
23 damage to his boat.
24 Q But you don't recognize that. You don't have
25 any personal knowledge at what time that was taken?
44
1 A No, I wasn't -- to my knowledge I wasn't present
2 when someone took that picture.
3 Q You testified earlier that you were not under
4 the influence of alcohol and you were certain of that?
5 A Uh-huh.
6 Q Did you agree to a blood test or breathalyzer
7 test when requested by the police?
8 A No. I told them that I wanted to have an
9 attorney present before I did anything.
10 Q So you declined their invitation to take any
11 type of a test?
12 MR. ACKERMAN: Object to the form.
13 THE WITNESS: I told them that I wanted to have
14 an attorney present before I would do anything.
15 BY MR. SCOTT:
16 Q Did you pay any sort of a fine or anything for
17 refusing the blood alcohol test?
18 A No, I did not.
19 Q Other than wanting to have an attorney present
20 at the time of their request for a blood alcohol test, is
21 there any other reason why you would refuse to give a
22 blood alcohol test?
23 A No, just that the police were only investigating
24 us and not them. And I didn't like the way that it was
25 being handled, so I asked for an attorney before I would
45
1 say or do anything.
2 Q But you realize if you were not under the
3 influence of alcohol and you did give a blood test, that
4 would have exonerated you, correct?
5 MR. ACKERMAN: Object to the form
6 THE WITNESS: If you heard all the other
7 lies that were coming out of the law enforcement
8 people that evening, like I said, I wanted an
9 attorney. I wanted somebody there.
10 BY MR. SCOTT:
11 Q Were you slurring your words that night? Do you
12 recall?
13 A No.
14 Q So you would disagree with the law enforcement
15 statement that you were slurring your words?
16 A Yeah.
17 Q Would you disagree with the law enforcement
18 officer's statement that you had alcohol on your breath?
19 A Yeah.
20 Q And that your eyes were glassy and bloodshot,
21 you would disagree with that?
22 A Well, actually I would say that my eyes are
23 always glassy and bloodshot, but I guess I'll leave it at
24 that.
25 Q Would you also disagree with the law enforcement
46
1 officer's statement that you swayed front to back and side
2 to side?
3 MR. ACKERMAN: Object to the form.
4 THE WITNESS: I don't know if I was or I wasn't.
5 All I can tell you is that I had been on the boat all
6 afternoon, so that's not something that would be
7 uncommon.
8 BY MR. SCOTT:
9 Q Do you recall making a statement to a law
10 enforcement officer that you had nothing to drink?
11 A Excuse me?
12 Q Do you recall making a statement to a police
13 officer that you had nothing to drink?
14 A Yes.
15 Q Was that a true statement?
16 A Well, I didn't consider myself impaired. And I
17 thought that that's what they were asking.
18 Q But you consume alcohol that night?
19 A I had two drinks earlier, yes.
20 Q And when the officer asked you if you had been
21 drinking, you said you had not?
22 A Correct, because I hadn't had a drink in at
23 least two hours, maybe longer.
24 Q Other than your wife, Ms. Brennan, and the
25 Plaintiffs, do you know of anyone else who is a witness to
47
1 the incident or who has any knowledge whatsoever regarding
2 the incident?
3 A My dog, but she can't talk.
4 Q Do you recall the names of any persons that you
5 were with or who saw you that you had conversations with
6 the night of the accident?
7 A No.
8 Q In your first affirmative defense to the
9 complaint you stated that you affirmatively allege --
10 A I'm sorry. I don't understand what you're
11 talking about
12 Q I'm getting there.
13 A Okay.
14 MR. ACKERMAN: Just for the record, David,
15 all of the affirmative defenses were prepared by his
16 Counsel, myself, in this case.
17 MR. SCOTT: Of course.
18 MR. ACKERMAN: And he probably won't understand
19 the legal jargon of affirmative defenses, but you can
20 go ahead.
21 THE WITNESS: That's what I was trying to say.
22 MR. ACKERMAN: Just let him ask the
23 question.
24 BY MR. SCOTT:
25 Q I'll get there. Just to make it clear, an
48
1 affirmative defense is a defense to any allegations that
2 are raised in the complaint. So as a defense to the
3 lawsuit that's been brought against you, you've stated
4 that you allege that the Plaintiff Paul Renneisen's own
5 carelessness and or negligence was the sole or
6 contributing legal cause of the alleged incident and
7 damages.
8 Other than what you've testified here today what
9 do you understand to be carelessness or negligence on the
10 part of Mr. Renneisen?
11 MR. ACKERMAN: Object to the form.
12 THE WITNESS: Well, first of all, I don't ever
13 remember saying that he was a hundred percent at
14 fault for what happened.
15 BY MR. SCOTT:
16 Q Do you believe that he's at all at fault?
17 A Yeah. I believe that he's somewhat at fault.
18 Q Other than what you have testified here today,
19 do you have any other factual basis to support your
20 conclusion or your opinion that --
21 A No. My only contention is that there were no
22 lights visible from the rear of his boat.
23 Q No further questions.
24 MR. ACKERMAN: I just want to put one thing on
25 the record, David, in an attempt to hopefully resolve
49
1 something you and I talked about earlier. I think
2 you might be in agreement with this, so if you'll
3 hear me out on this.
4 MR. SCOTT: Do you think we should have this on
5 the record?
6 MR. ACKERMAN: Yes. I need this on the record.
7 We obviously have a difference of opinion as to the
8 interpretation of the judge's order of sequestration.
9 My interpretation of that order and what I
10 thought the judge indicated is that Claudia Brennan
11 could not sit in on the depositions of Mr and Mrs.
12 Magill
13 You obviously thought otherwise and believed
14 that the judge's order meant they cannot discuss
15 their testimony at all between now and trial.
16 So what I'm going to state on the record is
17 this: Until such time as this matter is brought
18 before the court on any type of motion for
19 clarification and until such time as the judge rules
20 upon our disagreement, I'm going to instruct my
21 clients Mr and Mrs. Magill right now on the record
22 not to discuss their testimony at all with this case
23 with Claudia Brennan between now and trial.
24 MR. SCOTT: I certainly appreciate that Mr.
25 Ackerman. Let me just point out in my where for
50
1 clause of my motion which resulted in that order,
2 again, I requested that the court order the pretrial
3 sequestration of Claudia Brennan. And I also
4 requested that the order state that it shall be a
5 violation of said sequestration for either witness to
6 discuss aspects of the case or their testimony with
7 each other. And based upon that my motion was
8 granted as to Claudia Brennan.
9 MR. ACKERMAN: But that wasn't even discussed.
10 Listen, I told you we have an obvious disagreement,
11 so in an effort to be decent about this whole thing
12 what I'm telling you now is until such time as the
13 matter is brought before the court I am instructing
14 the Magills not to discuss their testimony with
15 Claudia Brennan. I think that's the fairest way to
16 do it.
17 MR. SCOTT: Well, I understand that. And I
18 think that should actually go without saying, Rand.
19 But what I want to make sure and what I'm trying to
20 get at is, was the order violated and that will be
21 a subject for another hearing before the court
22 obviously.
23 MR. ACKERMAN: We don't have any evidence of any
24 violation. I mean, there's been no testimony that
25 they've discussed their testimony with her.
51
1 MR. SCOTT: We'll see when I read the
2 transcript. Other than that I have no further
3 questions.
4 MR. ACKERMAN: She's going to read also.
5 (Thereupon, the deposition was concluded at 3:15
6 o'clock p.m.)
7 FURTHER DEPONENT SAITH NOT.
8
9
52
1 STATE OF FLORIDA )
2 ss:
3 COUNTY OF BROWARD )
4
5
6 ____________________________
7 RICHARD MAGILL
8
9
10 SWORN to and SUBSCRIBED to before me this
11 _______ day of ____________, 2006, in and for the City of
12 Fort Lauderdale, County of Broward, State of Florida.
13
14
15
16 _____________________________
17 Notary Public,
18 State of Florida at Large.
19
20
21
22
23
24
25
53
1 ERRATA SHEET
2
3 I, the undersigned,__________________
4 do hereby certify that I have read the foregoing
5 deposition and that to the best of my knowledge said
6 deposition is true and accurate with the exception of the
7 following corrections listed below:
8 PAGE LINE NOTES
9 __________________________________________________________
10 __________________________________________________________
11 __________________________________________________________
12 __________________________________________________________
13 __________________________________________________________
14 __________________________________________________________
15
16 ___________________________ _________________
17 Signature Date
18
19
20 Sworn to and Subscribed before me this _______ day of
21 _____, 2006.
22
23 _________________________________
24 Notary Public
25 State of Florida at Large
54
1 C-E-R-T-I-F-I-C-A-T-E
2 State of Florida )
3 ) ss County of Broward )
4
5 I, Christine A. Hopwood, a Registered
6 Professional Reporter, do hereby certify:
7 That prior to being examined, the witness in
8 the foregoing proceedings was by me duly sworn to
9 testify to the truth, the whole truth, and nothing
10 but the truth;
11 That said proceedings were taken before me at
12 the time and place therein set forth and were taken
13 down by me in shorthand and thereafter transcribed
14 into typewriting under my direction and supervision;
15 I further certify that I am neither counsel
16 for, nor related to, any party to said proceedings,
17 nor in anywise interested in the outcome thereof.
18 In witness whereof, I have hereunto subscribed
19 my name.
20 Dated this________day of___________, 2006
21
22 ____________________________
23 Christine A. Hopwood
24 My Commission #DD257593
25 Expires: November 21, 2007.
|