Wednesday, Jul. 01, 1998

Plaintiff's reply memorandum

VII. DEFENDANTS' CURATION ARGUMENTS ARE NOT CREDIBLE.

Defendants' excuse for their failure to adopt a long-term preservation plan is that plaintiffs misunderstand the term. They assert "it would have been foolhardy to develop a long-term preservation plan" in the present situation. Defendants' Memorandum at 35, 36. Three years ago defendants assured the Court that they would adopt a long-term preservation plan as soon as the skeleton was acclimatized to the environment at the Burke Museum, no later than the end of March 1999. See Plaintiffs' Memorandum at 37; SER 97, DOI 03672. Without telling the Court or plaintiffs they had changed their minds, defendants decided that they would not carry out a representation made to the Court. They did not admit that they had broken their promise until pressed by plaintiffs. ER 405.

Footnotes

Defendants say that a long-term plan is foolhardy because events relating to the skeleton are not repeatable but are unique. When they promised the Court in 1998 that a long term plan would be adopted, they knew the skeleton would be needed for multiple purposes. They had already accessed it on numerous occasions. See Appendix E attached. Moreover, these are precisely the circumstances that most demand a careful written plan. The more a skeleton is needed for study, monitoring and other handling, the more important it becomes to take precautions to prevent damage or deterioration before it occurs.

See also SER 1a, COE 002198 (stability of temperature and RH is "very important" to prevent damage to the skeleton).