In addition to having no real estate appraiser expert witness allowed at the trial, we found out that we had no pest control industry expert witness. Even though Mr. Peterson of the Structural Pest Control Board (and ex-Terminix employee) had willingly agreed to testify as our expert witness and was under subpoena to testify, he disappeared during the trial.

On September 28, Mr. Peterson was served with a subpoena to appear in court that was issued by our attorney.  He called our attorney's office and informed Lillian, the secretary, he had the subpoena and would be on 24-hour standby.

On September 29, just one week before the trial was scheduled to begin, Mr. Peterson was deposed by David Tennant, Terminix's attorney. At his deposition, Mr. Peterson surprisingly produced additional evidence against Terminix -- a copy of the pest inspection report issued by Ray's Termite Control in 1989 -- two years before we purchased the house. (Over a year before Mr. Peterson’s deposition, the SPCB had told me they only retain copies of pest inspection reports for two years and, therefore, they could not provide me with a copy of this report.)

The Ray's Termite Control Pest Inspection Report contained the following findings that Terminix neglected to report in August 1991 but that were reported in October 1991 by Parish Termites:

On Friday, October 15, our attorney informed the court that our expert pest control industry expert, who was under subpoena, could not be located. Terminix's attorney, David Tennant, informed the court that Mr. Peterson was "on a tour out of state" and would be gone for over a month.

Why was Terminix’s attorney privy to the whereabouts of our witness? What happened?  At his deposition just one week before the trial began, Mr. Peterson had voluntarily and surprisingly produced additional evidence against Terminix.  Why would he now ignore a subpoena and disappear out of state when he knew his testimony was vital to our case?

Judge Norman stated it would serve no purpose to issue a bench warrant for Mr. Peterson's arrest because he did not have jurisdiction outside the state.  How convenient for everyone -- but us!

On October 18, since Mr. Peterson could not be found to testify, our attorney subpoenaed the Custodian of Records for the Structural Pest Control Board to appear on October 19.  Marilyn Ferreira, the Deputy Registrar and Mr. Peterson's supervisor, telephoned our attorney's office and stated she would appear.

While going through our files relinquished by our attorney in December 1994, I found a Memorandum to Joel Primes, Supervising Deputy Attorney General, from the Structural Pest Control Board. The Memorandum was signed by Charles Peterson and was dated October 18, 1993 -- the same day his supervisor was subpoenaed and agreed to testify in court because Mr. Peterson could not be found!

Ms. Ferreira appeared in court on October 19 and testified Charles Peterson had received the subpoena.  Our attorney’s secretary, Lillian, testified Mr. Peterson had called her and told her he had the subpoena.  After the judge was satisfied our attorney did everything possible to produce Mr. Peterson, and over the protests of the defense attorneys, the judge ruled that he would allow Mr. Peterson's deposition testimony to be read into the records. After further objections by the defense attorneys, the judge allowed the attorneys to go through and delete portions of the deposition before it was read into the records.

My husband and I were not present at Mr. Peterson's deposition.  With all the defense attorneys in the courtroom during the trial, there was not enough room for us to sit up front with our attorney at any time during the trial.  We sat in the back of the courtroom throughout the entire trial, including while the attorneys decimated Mr. Peterson's deposition.  What was left of his deposition was read into the records. There was no opportunity for rebuttal; and because Mr. Peterson was not in court, he could not be questioned as to the contents of his deposition testimony.

Without Mr. Peterson's testimony, the pest inspection reports could not be introduced as evidence.  John Dionne, the inspector who issued the original Terminix report, testified in court, which allowed his "clear" report to be admitted into evidence. Why not -- it sure couldn't hurt Terminix; because there was nothing allowed to dispute it!

Mr. Peterson's testimony would have allowed the Ray's Termite Control Pest Inspection Report to be admitted as evidence. Since he could not be found, our attorney subpoenaed the Custodian of Records for Ray's Termite Control to appear in court. The witness from Ray's Termite Control appeared in court; so the pest inspection report issued by Ray's Termite Control -- that proved some of the same damages existed two years prior to our purchase -- could not be disallowed on the grounds of hearsay. It didn't matter.  The judge would not allow him to testify and would not allow the Ray's Termite Control Pest Inspection Report admitted as evidence, stating that there was no way to know that the damages existing at the time of our purchase were the same that existed two years prior. Oh, but there was; it just didn’t make it into court:

There was no Work Completion Tag posted or reported after the Ray’s Termite Control Pest Inspection Report to indicate any repairs had been done.

The unedited version of Mr. Peterson’s deposition contained the following testimony by Mr. Peterson:
 

There was never a new bathroom -- well, there was never any subfloor repairs.

Water stain in the garage was reported back on 7-17 of 1989.

[Inquiry of Ray’s Termite Control] shows the water-stained area in the garage.  The same plumbing line existed back in 1989.

Ray’s Termite Control reported the water stain in the garage back in 1989.

Without Mr. Peterson, none of our evidence against Terminix, including the photographs he had taken of the extensive dry rot and damages, was allowed in court.

Had Mr. Peterson withdrawn prior to the trial, we would have had the opportunity to obtain another expert witness -- a fact known by the defense attorneys!