Preview
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------------X
RONY ANDRADE and ALBA VANEGAS,
Plaintiffs, Index No.: 512446/2018
-Against-
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY,
SKANSKA KOCH, INC., KIEWIT INFRASTRUCTURE CO., and
SKANSKA KOCH/KIEWIT, Joint Venture,
Defendants.
-----------------------------------------------------------------------X
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY,
SKANSKA KOCH, INC., KIEWIT INFRASTRUCTURE CO., and
SKANSKA KOCH/KIEWIT, Joint Venture,
Third-Party Plaintiffs,
-against-
ATLANTIC COAST DISMANTLING, LLC, ENVIRONMENTAL
AND INFRASTRUCTURE GROUP, LLC, ATLANTIC COAST
DISMANTLING ENVIRONMENTAL AND INFRASTRUCTURE
GROUP JV, and AMS SAFETY LLC,
Third-Party Defendants.
-----------------------------------------------------------------------X
ATLANTIC COAST DISMANTLING, LLC, ENVIRONMENTAL
AND INFRASTRUCTURE GROUP, LLC, and ATLANTIC
COAST DISMANTLING ENVIRONMENTAL AND
INFRASTRUCTURE GROUP JV,
Second Third-Party Plaintiffs,
-against-
CATERPILLAR INC.
Second Third-Party Defendants.
-----------------------------------------------------------------------X
MEMORANDUM OF LAW IN OPPOSITION TO CATERPILLAR INC.’S MOTION IN LIMINE
TO EXCLUDE ALL EVIDENCE AND TESTIMONY REGARDING OTHER INCIDENTS
Of Counsel:
Anthony F. Tagliagambe, Esq.
1 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
PRELIMINARY STATEMENT
Third-Party Defendants ATLANTIC COAST DISMANTLING, LLC,
ENVIRONMENTAL AND INFRASTRUCTURE GROUP, LLC, and ATLANTIC COST
DISMANTLING ENVIRONMENTAL AND INFRASTRUCTURE GROUP (collectively,
“ACD/EIG”) submit this Memorandum of Law in opposition to the motion in limine of Second
and Third Third-Party Defendant, CATERPILLAR INC. (“Caterpillar”), to exclude all evidence
and testimony regarding other similar incidents involving Caterpillar excavators and heavy earth-
moving machinery. As demonstrated herein, Caterpillar’s motion should be denied because there
are prior similar incidents involving Caterpillar machinery that are substantially similar to the
instant case involving blind spots and limited visibility while operating this machinery in reverse.
STATEMENT OF RELEVANT FACTS
A. The Parties And Action
Plaintiffs allege that on November 28, 2017, a Caterpillar hydraulic excavator, model 349F
L, reversed into and hit a concrete Jersey barrier causing it to strike Plaintiff Rony Andrade.
Plaintiffs commenced this action against The Port Authority of New York and New Jersey (the
owner of the bridge), and Skanska Koch, Inc., Kiewit Infrastructure Co., and Skanska Koch/Kiewit
(the general contractor entities) (collectively “the Port Authority Defendants”). Subsequently, the
Port Authority Defendants commenced a third-party action against ACD/EIG (Plaintiff’s
employer). On December 4, 2018, ACD/EIG impleaded the manufacturer of the excavator,
Caterpillar, by way of its Second Third-Party Complaint. Thereafter, the Port Authority
Defendants commenced a third third-party action against Caterpillar.
B. The Claims To Be Tried Against Caterpillar
ACD/EIG’s third-party action against Caterpillar asserted causes of action for both strict
and negligent products liability based on design defect and failure to warn, common-law
negligence, contribution, and common-law indemnification (Ex. A, Second Third-Party
2 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
Complaint). 1 The gravamen of the claims against Caterpillar is that the operator of the Caterpillar
349F L encountered blind spots and limited visibility while operating the excavator in reverse,
thereby causing and contributing to Plaintiff’s accident. John Wade, the operator of the Caterpillar
349F L at the time of the accident, testified to blind spots as follows (Ex. B, Excerpt of Wade Dep.
Tr., at p. 15):
Q. Doesn’t the Caterpillar 349 have a blind spot?
A. Yes.
MR. ROBERTSON: Object to the form.
BY MR. TAGLIAGAMBE:
Q. Does the CAT 339 have a blind spot?
A. Yes.
* * * *
Q. Is the blind spot the same for the Caterpillar 339?
A. Yes.
MR. ROBERTSON: Object to the form.
Although Caterpillar moved for summary judgment seeking dismissal of ACD/EIG’s third-
party claims, the Supreme Court (Hon. Lillian Wan, J.S.C.) denied its motion with regards to
ACD/EIG’s claims for negligence and strict products liability claims for defective design and
failure to warn, contribution, and common-law indemnity (Ex. C, Supreme Court MSJ Order, pp.
16-18).
1
ACD/EIG’s warranty claims were dismissed as unopposed on summary judgment.
2
3 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
ARGUMENT
SIMILAR INCIDENT EVIDENCE IS
PROPER TO ESTABLISH
CATERPILLAR’S NOTICE
A. Caterpillar’s Notice Is Clearly At Issue
The standard for determining whether a product was defectively designed is whether the
product, as designed, was not reasonably safe. See Voss v. Black & Decker Mfg. Co., 59 N.Y.2d
102, 108 (1983). Where it is alleged that a manufacturer negligently designed a defective product,
the “plaintiff must prove that the manufacturer failed to exercise reasonable care in designing the
product.” Giunta v. Delta Intern. Machinery, 300 A.D.2d 350, 352 (2d Dep’t 2002). Thus, a key
component of demonstrating that a manufacturer negligently designed a product is notice – i.e.,
whether the manufacturer “knows or, in the exercise of reasonable care, should have known that
the product is not reasonably safe.” N.Y. Pattern Jury Instr. § 2:126; see also Robinson v. Reed-
Prentice Division of Package Machinery Co., 49 N.Y.2d 471, 480 (1980) (“A cause of action in
negligence will lie where … a manufacturer was responsible for a defect that caused injury, and []
the manufacturer could have foreseen the injury”).
“A manufacturer also has a duty to warn against latent dangers resulting from foreseeable
uses of its product of which it knew or should have known,” as well as “unintended uses of a
product provided these uses are reasonably foreseeable.” Liriano v. Hobart Corp., 92 N.Y.2d 232,
237 (1998). Thus, notice is also an element of a negligent failure to warn claim.
B. Admissibility Of Similar Incident Evidence
Axiomatically, evidence of other similar incidents (“OSI”) is admissible at trial to establish
notice and/or proof of the existence of a dangerous condition. Hyde v. Cty. of Rensselaer, 51
N.Y.2d 927, 929 (1980); Martin v. Our Lady of Wisdom Reg'l Sch., 151 A.D.3d 838, 839 (2d Dept
2017); Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 336 (1986). “[T]here are no hard or
3
4 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
fast rules as to what degree of similarity there must be to make the evidence admissible. Rather,
in determining the admissibility of OSI evidence, the appropriate focus is on all of the
‘circumstances’ surrounding the OSI evidence, not necessarily any specific similarity.” Adams v.
Toyota Motor Corp., 867 F.3d 903, 913 (8th Cir. 2017). Ultimately, the Supreme Court
“necessarily is vested with broad discretion to determine the materiality and relevance of proposed
[prior incident] evidence.” Martin, 151 A.D.3d at 839.
The “degree of similarity required” for admission of similar prior incidents “depends upon
the purpose for which the prior accidents are offered.” Schmelzer v. Hilton Hotels Corp., No. 05
Civ. 10307, 2007 WL 2826628, at *2 (S.D.N.Y. Sept. 24, 2007). “[W]here the prior accidents are
offered only to show that the defendant had notice,” courts have applied a “relaxed standard” to
the degree of similarity required. Id.; see also 1 McCormick On Evid. § 200.4 (“Since all that is
required is that the previous injury or injuries be such as to call defendant’s attention to the
dangerous situation that resulted in the litigated accident, the similarity in the circumstances of the
accidents can be considerably less than that which is demanded when the same evidence is used
for one of the other valid purposes”).
“Generally, different models of a product will be relevant if they share with the accident-
causing model those characteristics pertinent to the legal issues raised in the litigation.” Fine v.
Facet Aerospace Prods. Co., 133 F.R.D. 439, 441 (S.D.N.Y. 1990); see also Mestman v. Ariens
Co., 135 A.D.2d 516, 517 (2d Dep’t 1987) (ordering disclosure of different model numbers and
model years for snow blowers “identical or substantially similar to the model claimed to be
defective”). Differences between other incidents and the instant action such as the surrounding
circumstances of the accidents, the year of production of the products, the model of the products,
or immaterially distinct characteristics between the products, go to the weight of the evidence, not
its admissibility. Smalley v. Harley-Davidson Motor Co. Group LLC, 134 A.D.3d 1490 (4th Dep’t
4
5 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
2015); Bellinger v. Deere & Co., 881 F.Supp. 813, 818 (N.D.N.Y. 1995); Bolm v. Triumph Corp.,
71 A.D.2d 429, 438-39 (4th Dep’t 1979); Glazer v. Socata, S.A.S., 75 Misc.3d 605, 611 (Sup. Ct.
Monroe Cnty. 2022); Schmelzer, 2007 WL 2826628, at *3.
The foregoing principles are illustrated in Smalley v. Harley-Davidson, an action involving
plaintiffs injured after their motorcycle lost electrical power while in operation – i.e., a “quit while
riding” event. The Fourth Department found that the Supreme Court erred in precluding plaintiffs
from presenting evidence that their motorcycle suffered from a similar defect as other motorcycles
previously recalled by Harley. Smalley, 134 A.D.3d at 1490-91. The Appellate Division identified
two errors in the trial court’s preclusion. First, the court erred in precluding the testimony of
plaintiffs’ expert, who was expected “to testify in part that plaintiffs’ motorcycle does not differ
in any material respect from those included in the 2004 recall, despite the fact that plaintiffs’
motorcycle did not have the same stator as the motorcycles affected by the recall.” Id. at 1492.
Second, the court erred in precluding prior accident complaints involving other “quit while riding”
events. As the Court explained, “plaintiffs should be allowed the opportunity to demonstrate that
the customer complaints they seek to introduce are admissible because they involve motorcycles
sufficiently similar to theirs and accidents sufficiently similar to the subject accident, even if the
motorcycles that are the subject of those complaints are not identical in model and year of
manufacture to plaintiffs’ motorcycle.” Id. at 1493 (emphasis added).
More recently, in Glazer v. SOCATA, S.A.S. the Supreme Court allowed a plaintiff to
introduce evidence of other similar incidents involving different airplane models. Glazer, 75
Misc.3d at 612. The crux of the plaintiff’s products liability action was that an allegedly defective
pressurization system caused damage to an overheat thermal switch (“OTSW”), thereby sending
false signals to the decedent-operator and causing depressurization of the cabin. Id. at 609-610.
Defendant SOCATA moved to preclude prior incident evidence of faulty OTSWs in other
5
6 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
SOCATA planes that caused depressurization events, arguing the other incidents were not
substantially similar because they involved “dissimilar facts” with “differences in operation of the
plane.” Id. at 610. The Supreme Court disagreed with SOCATA’s analysis, recognizing that
“‘[s]ubstantial similarity depends upon the underlying theory of the case … and is defined by the
particular defect at issue.” Id. at 612 (quoting Guild v General Motors Corp., 53 F Supp.2d 363,
367 (W.D.N.Y. 1999)). Therefore, because plaintiff established the prior incidents involved
similar false signals with some evidence of defective OTSWs, the court found that the prior
incidents were substantially similar to the subject action and, thus, admissible at trial. Id. at 612;
see also McKeon v. Sears Roebuck & Co., 190 A.D.2d 577, 577 (1st Dep’t 1993) (“Nor is there
merit to defendants’ contention that disclosure of accidents, complaints, and lawsuits … should be
limited only to claims arising out of rip cut accidents such as was purportedly sustained by plaintiff,
since it would be relevant to know whether the absence of a lower blade guard renders the machine
dangerous regardless of the particular task being performed.”).
And in Schmelzer v. Hilton Hotels, a products liability action involving allegedly
defectively designed exercise balls that burst suddenly during ordinary use, the plaintiffs sought
to introduce evidence at trial that defendant had notice of their defective design through prior
incidents involving bursting exercise balls. Schmelzer, 2007 WL 2826628, at *1-2. The court
allowed the plaintiffs to introduce evidence of these other incidents, including multiple incidents
of similar-sized balls and at least one incident involving a larger ball than that involved in
plaintiff’s accident. Id. at *2. “The possible differences hypothesized by Valeo-the model of the
balls and the way they were manufactured-may diminish the weight of the prior accidents on the
issue of notice but are not material enough to negate the prior accidents’ relevance.” Id. at *3; see
also Bolm, 71 A.D.2d at 438-39 (“The exhibit and testimony should have been received because
there was credible evidence that the two tanks were the same in all significant respects. The fact
6
7 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
that they were manufactured in different years went to the weight to be accorded to the evidence,
not its admissibility”).
C. Other Similar Incident Evidence Is
Admissible To Demonstrate Caterpillar’s Notice
Caterpillar does not dispute that substantially other similar incident evidence is admissible
at trial. Rather, Caterpillar contends that this court should issue a preliminary order precluding
evidence and testimony of all prior incidents, based on Caterpillar’s flawed view of the
dissimilarity between this action and two other incidents – Tahsin Sayeed v. Caterpillar, et al., Sup.
Ct. Queens (Index No. 6166/2013) and Caponegro v. Caterpillar, Inc., Superior Ct. N.J. (No. MRS-
L-1364-05; MRS-L-520-06) – identified in ACD/EIG’s Notice to Admit. According to
Caterpillar, these prior incidents are not substantially similar because they “do not involve
Caterpillar 349F Excavators,” “arise out of fact patterns which are not substantially similar to the
present matter,” involve excavators manufactured before the Caterpillar 349F, and involve
allegations relating to the absence of a rearview camera. While Caterpillar’s focus on two prior
incidents does not address all other prior incidents similar to the instant one, it nonetheless fails to
identify any meaningful distinction between this action and the Sayeed and Caponegro actions.
All of these incidents involved blind spots and visibility issues encountered while operating heavy
earth-moving Caterpillar machinery (excavators) in reverse, resulting in severe injury to the
plaintiffs. Ultimately, because the defects and hazards in all of these cases are substantially similar,
evidence of these other incidents is admissible at trial.
1. Tahsin Sayeed v. Caterpillar
Like the instant matter, the Sayeed case raised issues against Caterpillar concerning blind
spots and limited visibility in its large earth-moving machinery operating in reverse on a
construction site. To briefly summarize the facts of the Sayeed incident, Mr. Sayeed was injured
7
8 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
“when an excavator (CAT 320-D L), was backing up” on an excavation project; the operator had
a “limited view” and testified to “blind spots everywhere” as he operated the excavator in reverse;
and Mr. Sayeed suffered a gruesome left leg injury requiring partial amputation after the
“excavator’s right track” struck his leg while operating in reverse (Ex. D, New York City
Department of Design and Construction Report; Ex. G, John Toppi Deposition Transcript, p. 98).
Even at first blush, the mechanism of this accident was substantially similar to Plaintiff
Andrade’s accident. Both accidents involved an excavator backing up on an excavation project.
Next, each incident involved limited visibility of workers positioned behind the operator while the
excavator moved in reverse. And, similar to Sayeed, in this case the right track of an excavator
moving in reverse struck an object necessitating the amputation of a worker’s left leg.
Against this backdrop, Caterpillar’s grievance concerning minute and irrelevant
differences in the “facts and circumstances” of these cases such as the fact that the right excavator
track here hit a barrier that crushed Plaintiff’s left leg, whereas in Sayeed the right excavator track
struck plaintiff’s left leg directly, is entirely unavailing. It is well-established that slight
differences in circumstances such as these do not defeat a showing of substantial similarity – rather,
different facts and circumstances go only to the weight afforded to the other incident evidence, not
its admissibility. See Smalley, 134 A.D.3d at 1492-93; Glazer, 75 Misc.3d at 612; see also
McKeon, 190 A.D.2d at 577. Along these lines, Caterpillar’s claim that this accident happened
because of misinterpreted hand signals is entirely unsupported. In truth, Wade testified he never
saw Plaintiff when he looked in his side mirrors before backing up the excavator.
At any rate, in a products liability case it is appropriate to define the similarity of accidents
by the defect at issue. Bellinger, 881 F. Supp. at 817-18; Glazer, 75 Misc.3d at 612. In this respect,
the crux of the products liability claim in Sayeed involved the same allegations that are alleged
here: Caterpillar negligently designed the excavator to allow and permit “blind spots” while
8
9 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
operating in reverse; allegations that the excavator was not reasonably safe; and Caterpillar’s
failure to install a WAVS camera system on the subject excavator (Ex. E, Sayeed Bill of
Particulars; Ex. F, Sayeed Amended Complaint). And, like Mr. Wade here, the operator of the
excavator in Sayeed testified to blind spots while operating in reverse (Ex. G, Excerpts from John
Toppi Deposition Transcript, p. 98).
Caterpillar cannot honestly claim that, given the allegations and the facts surrounding the
incident that took Mr. Sayeed’s leg, it was without any awareness that its excavators suffered from
blind spot issues and visibility limitations while operating in reverse. In fact, the plaintiff in Sayeed
argued that Caterpillar was very much aware of the hazardous blind areas associated with rearward
operation of its excavators for decades prior to its sale of the 320DL— an assertion that was
supported by reports from the War Department in 1943, the U.S. Bureau of Mines Report in 1978,
the Mitsubishi Heavy Industry safety report in 1989, and numerous cases arising from the same
rearview blind spot hazard naming Caterpillar as the defendant (Ex. H, Mark Cannon Affirmation
in Sayeed, pp. 6-10). The plaintiff in Sayeed also obtained an expert witness who opined after
inspecting the Model 320D L that it was manufactured in such a way that it was “camera ready”
for installation of the WAVS camera system, but a camera necessary to prevent this accident was
not included as standard on the excavator (Ex. H, at p. 16, ¶¶ 70-72).
The instant action likewise raises similar issues and arguments against Caterpillar
concerning its awareness of the hazards associated with rearward operation of excavators, blind
spots and limited visibility, and a Caterpillar excavator model that failed to include the necessary
WAVS camera system to render the product reasonably safe (Ex. I, Crandall Report, pp. 13-14,
¶¶ 8-10, pp. 47-48, ¶¶ 96-101). Like Sayeed, this action also involves allegations of Caterpillar’s
awareness of a hazardous blind area issues, as well as the claim that these defects are curable at
minimal cost (Ex. I, pp. 25-29, ¶¶ 40-58, p. 47, ¶ 95). As in Sayeed, ACD/EIG also supports its
9
10 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
assertions not only with substantial testimonial evidence, but evidence that Caterpillar’s right
sideview cameras were standard features for excavators sold in the EU in compliance with
European requirements, computer simulations at the Hydraulic Excavator Development Center in
Japan (after the Sayeed incident) were run to test the 349L’s visibility, and mirrors and glass
around the cab were incorporated in response to the sideview blind spot after the design and testing
phase of the 349F (Ex. J, Caterpillar’s Response to Notice to Admit dated May, 20, 2022, p. 6;
Ex. K, Dennis O’Rourke Deposition Transcript, p. 92). Like Sayeed, ACD/EIG’s expert here
inspected the Model 349F L and also found it was manufactured ready for installation of a side-
view WAVS camera system but, again, Caterpillar failed to include this camera as standard
equipment on its excavator (Ex. I, p. 14, ¶¶ 9-10, p. 22, ¶ 34).
The foregoing showing establishes the substantial similarity between this action and the
Sayeed incident in all material respects concerning the alleged defects and hazards posed by
Caterpillar’s machinery when operating in reverse. Caterpillar’s attempt to distinguish these
incidents based on the different excavator models and the year of manufacture is unavailing.
Courts have made clear that differences in model and manufacturing year relate only to the weight
of the evidence, not its admissibility. See Smalley, 134 A.D.3d at 1492-93 (different models and
year of manufacture do not preclude admissibility); Schmelzer, 2007 WL 2826628, at *3 (model
and manufacturing go to weight); Glazer, 75 Misc.3d at 612 (allowing evidence of similar
incidents involving different plane models). This is particularly so where the accident-causing
characteristics and defect are substantially similar – blind spots and limited operator visibility
while operating heavy earth-moving Caterpillar excavators in reverse. See Fine, 133 F.R.D. at
441; Mestman, 135 A.D.2d at 517; Bolm, 71 A.D.2d at 438-39.
Along these lines, the unsubstantiated claims of Caterpillar’s counsel that Sayeed is not
substantially similar because the Model 320D is considered a “medium” excavator, whereas the
10
11 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
Model 349F is considered “large,” is also inapposite to the issue of admissibility. Schmelzer, 2007
WL 2826628, at *2-3 (allowing into evidence prior incidents involving different sized balls); see
also In re Gen. Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 (JMF), 15 Civ. 8324
(JMF), 2017 WL 4417693, at *6 (S.D.N.Y. Oct. 3, 2017) (“Scruggs may offer limited evidence
concerning the fifty-eight other incidents for purposes of proving notice” even though “[f]ifty-five
of those incidents may well have involved different vehicle platforms, with different ignition
switches and systems”). As explained by ACD/EIG’s expert, Caterpillar has known about
widespread issues with blind spots on various models for decades and, in 2004, it issued a report
with blind area diagrams for Models 320C and 325B hydraulic excavators, which are smaller than
Model 349F (Ex. I, at pp. 25-26, ¶¶ 43-44). And, as the operator in this incident explained, the
other excavator on the jobsite, Model 335, also suffered from blind spots (Ex. B, at p. 15). In sum,
there is substantial evidence on this record that the minor distinctions Caterpillar draws between
“medium” and “large” excavators is immaterial to the issues of blind spots and limited visibility
while operating in reverse. These are substantially similar defects and hazards notwithstanding
any difference in excavator model and “[i]t is not necessary that the facts and circumstances
surrounding the accidents be identical; substantial similarity is all that is required.” See Holmes
v. Sahara Coal Co., 131 Ill.App.3d 666, 672 (1985) (rejecting Caterpillar’s argument that prior
accidents involving different models of tractors are “totally dissimilar”).
Finally, Caterpillar’s focus on the allegation in Sayeed that Caterpillar should have
installed a rear WAVS camera system, as opposed to claims that Caterpillar should have installed
a right-side WAVS camera system here, fails to disprove the substantial similarity between the
two incidents and the defects and hazards of the excavators involved in those cases. For starters,
Mr. Sayeed advanced multiple alternative theories for Caterpillar’s negligent design and feasible
alternative designs, not just the installation of a rear-view WAVS camera. Setting this aside,
11
12 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
Caterpillar’s argument is beside the point. This action and Sayeed both involve two-tracked, heavy
earth-moving excavators, both of which Caterpillar manufactured “camera ready” for installation
of the WAVS camera system but, ultimately, did not include the necessary cameras necessary to
maximize safety at minimal costs. Thus, just as is alleged here, in Sayeed, the plaintiff alleged the
excavator suffered from “blind spots” and the accident was caused by Caterpillar’s failure to
“provide the operator with adequate and sufficient rearward visibility” and “adequate and proper
visibility aids … and/or other safety devices, to effectively minimize and control such hazards”
(Ex. E, at p. 3). The substantial similarities between the incident in Sayeed and this case is relevant
to Caterpillar’s notice of defects and hazards posed by its excavators and, as such, it is probative
of Caterpillar’s failure to use reasonable care in its design and warnings related to the Model 349F
L.
For the foregoing reasons, the Sayeed incident is admissible at trial as a substantially
similar other incident relevant to ACD/EIG’s third-party claims against Caterpillar.
2. Anunciacao v. Caterpillar Inc., No. 07-10904-JGD (D. Mass. 2011)
As addressed above, while Caterpillar’s motion in limine is stylized as a motion to preclude
“all evidence and testimony regarding alleged other incidents,” the motion itself addresses only
three prior lawsuits – Sayeed, Metro, and Estate of Caponegro. Yet, as noted by the plaintiff’s
expert report in Sayeed, there are numerous instances where it was claimed that a person had been
seriously injured or killed by a reverse moving Caterpillar machine due, at least in part, to the
operator’s limited visibility (Ex. H, at pp. 9-10). At least one of those cases, Anunciacao v.
Caterpillar Inc., is not addressed by Caterpillar but, in all relevant ways, is substantially similar to
this action and, therefore, should be admissible on the issue of notice. Smalley, 134 A.D.3d 1490;
Glazer, 75 Misc.3d 605; Schmelzer, 2007 WL 2826628; see also Bolm, 71 A.D.2d 429.
12
13 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
Like the instant action and Sayeed, the Anunciacao action also involved an injured worker
whose left leg was amputated below the knee after standing to the right rear of a Caterpillar
excavator (Model 320CU) without a proper WAVS camera system (Ex. L, Anunciacao
Memorandum). Thus, the issues in Anunciacao centered on Caterpillar’s defective design of its
excavator, which plaintiff alleged was “unreasonably dangerous” given the “available …
inexpensive …[and] reasonable safeguards available to control the subject hazard of impaired
visibility, the blind zones around the equipment” (Ex. M, Anunciacao Trial Transcript 3-10:7-12,
3-11:4-6). Furthermore, plaintiff asserted that, although Caterpillar was “aware of the fact that
[the blind spot] is a hazard” and “developed the visibility assistance device, the camera system, to
allow that blind spot to be viewed by the operator,” Caterpillar failed to properly equip its
dangerous machines despite its knowledge (Ex. M, at 3-22:6-11). 2
D. There Is No Prejudice To Caterpillar That Outweighs
The Probative Nature Of Similar Incident Evidence
Caterpillar contends that similar prior incidents should be precluded because such evidence
is prejudicial and may confuse or mislead the jury. However, issues of Caterpillar’s notice of
excavator defects and dangers when operating in reverse, Caterpillar’s reasonableness in designing
the 349F L excavator given its notice, and the adequacy of its warnings in light of known or
foreseeable uses and misuses of the excavator, are directly at the heart of ACD/EIG’s negligence-
based claims in this action and, thus, of high probative value. The ability of ACD/EIG to put on
its case with highly probative evidence of the other similar incident evidence significantly
outweighs the hypothetical issues raised by Caterpillar. Furthermore, the alleged issues raised by
Caterpillar, if at all problematic, could be cured by limiting instructions that preserve all parties’
2
At trial, ACD/EIG would present an additional offer of proof to the court to demonstrate the substantial similarity
between the two cases, if necessary.
13
14 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
rights. Caterpillar failed to prove it is prejudiced by admission of relevant evidence of other,
substantially similar incidents involving its excavators.
Evidence is admissible if it is relevant and its probative value outweighs the risk of undue
prejudice. Mazella v. Beals, 27 N.Y.3d 694, 709 (2016). In this respect, trial courts have “wide
discretion in making evidentiary rulings.” Id.; Rojas v. New York City Transit Authority, 176
A.D.3d 990, 991 (2d Dep’t 2019). In negligence actions where a condition’s dangerousness or a
party’s notice of the condition is at issue, it has consistently been held that records of prior similar
accidents are admissible. E.g., Klatz v. Armor Elevator Co., Inc., 93 A.D.2d 633, 637 (2d Dep’t
1983); Coan v. Long Island Rail Road, 246 A.D.2d 569, 569 (2d Dep’t 1998). As addressed herein,
the relevancy of other incident evidence turns on the issue of “substantial similarity.” E.g.,
Smalley, 134 A.D.3d 1490. “When such similarity has been first shown, the proof of prior
accidents has sufficient probative value to justify its admission as another species of circumstantial
evidence.” Kaplan v. City of New York, 6 A.D.2d 489, 491 (1st Dep’t 1958); see also Tomassi v.
Town of Union, 58 A.D.2d 670, 671 (3d Dep’t 1977) (affirming admission of prior accident
evidence, stating “it is only necessary that the relevant conditions be shown to be similar to those
existing at the time of the accident in question”).
Here, an element of ACD/EIG’s negligence-based design defect claim requires a showing
that Caterpillar knew or, in the exercise of reasonable care, should have known, that the excavator
was not reasonably safe. N.Y. Pattern Jury Instr. § 2:126. With regard to failure to warn,
ACD/EIG also seeks to demonstrate that Caterpillar failed to adequately warn against dangers
resulting from foreseeable uses of its product which it knew or should have known of, as well as
unintended uses that were reasonably foreseeable. Liriano, 92 N.Y.2d at 237. As demonstrated
herein, substantially similar other incidents are probative of Caterpillar’s notice of defects with its
14
15 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
excavators and the dangers posed by them. Clearly, ACD/EIG’s right to prove the elements of its
case and its ability to do so with relevant evidence cannot be questioned.
While Caterpillar speculates that the jury may be confused or misled by presentation of
evidence of other similar incidents, the Court of Appeals has recognized the proper remedy for
any alleged confusion or prejudice is not preclusion, but a limiting instruction. See Hyde, 51
N.Y.2d at 929 (allowing prior accident evidence as evidence of dangerous condition and notice
thereof and noting that defendant’s recourse was “to request limiting instructions”). Limiting
instructions have been recognized to “mitigate[] if not eliminate[]” potential prejudice to a party
or confusion for the jury. Curtin v. J.B. Hunt Transp., Inc., 79 A.D.3d 1608, 1610 (4th Dep’t
2010); see also Varano v. Forba Holdings, LLC, 43 Misc.3d 642, 649 (Sup. Ct. Onondaga Cnty.
2014) (“With appropriate limiting instructions … there will be no juror confusion and no prejudice
to a substantial right of any of the parties”); Gayle v. City of New York, 256 A.D.2d 541, 542-43
(2d Dep’t 1998) (trial court should have admitted evidence with limiting instruction).
Finally, Caterpillar is essentially arguing that the Court should preclude substantially
similar prior incidents because they are damaging to its defense. However, “otherwise admissible
evidence bearing directly on the ultimate question to be determined at trial … does not become
subject to exclusion simply because it is devastating to the position of the party seeking to exclude
it.” Cheeks v. City of New York, 123 A.D.3d 532, 552 (1st Dep’t 2014). The fact that Caterpillar
was on notice of blind spots and visibility issues with its excavators from substantially similar
incidents does not constitute prejudice warranting preclusion of this evidence. In fact, any alleged
“prejudice of the evidence in question arises precisely from its extremely probative nature.” Id.
As shown herein, the probative value of this evidence outweighs all counterarguments raised by
Caterpillar and demonstrates this evidence should be admitted at trial.
15
16 of 17
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024
CONCLUSION
In sum, because New York law is clear that substantially similar other incidents are
admissible at trial, Caterpillar’s motion in limine to exclude all evidence and testimony regarding
other similar incidents should be denied. The substantial similarity between the Sayeed and
Anunciacao cases as identified herein demonstrates the relevancy of these prior incidents to the
inquiry into Caterpillar’s reasonableness in designing the 349F L excavator, given its notice of
defects and hazards posed when operating in reverse on a construction site. The prior incidents
are also probative of ACD/EIG’s failure to warn claim. Given Caterpillar’s awareness of severe,
prior injuries caused by operating its excavators in reverse, there are genuine issues concerning
Caterpillar’s design and warning as it relates to the subject excavator. The jury should be allowed
to hear evidence to this effect in its assessment of Caterpillar’s conduct.
Dated: New York, New York
April 24, 2024
LONDON FISCHER LLP
By: /s/ Anthony Tagliabambe
Anthony Tagliagambe
Attorneys for Third-Party
Defendants/Second Third-Party Plaintiffs
Atlantic Coast Dismantling, LLC,
Environmental and Infrastructure Group,
LLC Atlantic Coast Dismantling
Environmental and Infrastructure Group JV
59 Maiden Lane, Floor 39
New York, New York 10038
Tel: (212) 972-1000
16
17 of 17
Preview
FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------X RONY ANDRADE and ALBA VANEGAS, Plaintiffs, Index No.: 512446/2018 -Against- THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, SKANSKA KOCH, INC., KIEWIT INFRASTRUCTURE CO., and SKANSKA KOCH/KIEWIT, Joint Venture, Defendants. -----------------------------------------------------------------------X THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, SKANSKA KOCH, INC., KIEWIT INFRASTRUCTURE CO., and SKANSKA KOCH/KIEWIT, Joint Venture, Third-Party Plaintiffs, -against- ATLANTIC COAST DISMANTLING, LLC, ENVIRONMENTAL AND INFRASTRUCTURE GROUP, LLC, ATLANTIC COAST DISMANTLING ENVIRONMENTAL AND INFRASTRUCTURE GROUP JV, and AMS SAFETY LLC, Third-Party Defendants. -----------------------------------------------------------------------X ATLANTIC COAST DISMANTLING, LLC, ENVIRONMENTAL AND INFRASTRUCTURE GROUP, LLC, and ATLANTIC COAST DISMANTLING ENVIRONMENTAL AND INFRASTRUCTURE GROUP JV, Second Third-Party Plaintiffs, -against- CATERPILLAR INC. Second Third-Party Defendants. -----------------------------------------------------------------------X MEMORANDUM OF LAW IN OPPOSITION TO CATERPILLAR INC.’S MOTION IN LIMINE TO EXCLUDE ALL EVIDENCE AND TESTIMONY REGARDING OTHER INCIDENTS Of Counsel: Anthony F. Tagliagambe, Esq. 1 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 PRELIMINARY STATEMENT Third-Party Defendants ATLANTIC COAST DISMANTLING, LLC, ENVIRONMENTAL AND INFRASTRUCTURE GROUP, LLC, and ATLANTIC COST DISMANTLING ENVIRONMENTAL AND INFRASTRUCTURE GROUP (collectively, “ACD/EIG”) submit this Memorandum of Law in opposition to the motion in limine of Second and Third Third-Party Defendant, CATERPILLAR INC. (“Caterpillar”), to exclude all evidence and testimony regarding other similar incidents involving Caterpillar excavators and heavy earth- moving machinery. As demonstrated herein, Caterpillar’s motion should be denied because there are prior similar incidents involving Caterpillar machinery that are substantially similar to the instant case involving blind spots and limited visibility while operating this machinery in reverse. STATEMENT OF RELEVANT FACTS A. The Parties And Action Plaintiffs allege that on November 28, 2017, a Caterpillar hydraulic excavator, model 349F L, reversed into and hit a concrete Jersey barrier causing it to strike Plaintiff Rony Andrade. Plaintiffs commenced this action against The Port Authority of New York and New Jersey (the owner of the bridge), and Skanska Koch, Inc., Kiewit Infrastructure Co., and Skanska Koch/Kiewit (the general contractor entities) (collectively “the Port Authority Defendants”). Subsequently, the Port Authority Defendants commenced a third-party action against ACD/EIG (Plaintiff’s employer). On December 4, 2018, ACD/EIG impleaded the manufacturer of the excavator, Caterpillar, by way of its Second Third-Party Complaint. Thereafter, the Port Authority Defendants commenced a third third-party action against Caterpillar. B. The Claims To Be Tried Against Caterpillar ACD/EIG’s third-party action against Caterpillar asserted causes of action for both strict and negligent products liability based on design defect and failure to warn, common-law negligence, contribution, and common-law indemnification (Ex. A, Second Third-Party 2 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 Complaint). 1 The gravamen of the claims against Caterpillar is that the operator of the Caterpillar 349F L encountered blind spots and limited visibility while operating the excavator in reverse, thereby causing and contributing to Plaintiff’s accident. John Wade, the operator of the Caterpillar 349F L at the time of the accident, testified to blind spots as follows (Ex. B, Excerpt of Wade Dep. Tr., at p. 15): Q. Doesn’t the Caterpillar 349 have a blind spot? A. Yes. MR. ROBERTSON: Object to the form. BY MR. TAGLIAGAMBE: Q. Does the CAT 339 have a blind spot? A. Yes. * * * * Q. Is the blind spot the same for the Caterpillar 339? A. Yes. MR. ROBERTSON: Object to the form. Although Caterpillar moved for summary judgment seeking dismissal of ACD/EIG’s third- party claims, the Supreme Court (Hon. Lillian Wan, J.S.C.) denied its motion with regards to ACD/EIG’s claims for negligence and strict products liability claims for defective design and failure to warn, contribution, and common-law indemnity (Ex. C, Supreme Court MSJ Order, pp. 16-18). 1 ACD/EIG’s warranty claims were dismissed as unopposed on summary judgment. 2 3 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 ARGUMENT SIMILAR INCIDENT EVIDENCE IS PROPER TO ESTABLISH CATERPILLAR’S NOTICE A. Caterpillar’s Notice Is Clearly At Issue The standard for determining whether a product was defectively designed is whether the product, as designed, was not reasonably safe. See Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108 (1983). Where it is alleged that a manufacturer negligently designed a defective product, the “plaintiff must prove that the manufacturer failed to exercise reasonable care in designing the product.” Giunta v. Delta Intern. Machinery, 300 A.D.2d 350, 352 (2d Dep’t 2002). Thus, a key component of demonstrating that a manufacturer negligently designed a product is notice – i.e., whether the manufacturer “knows or, in the exercise of reasonable care, should have known that the product is not reasonably safe.” N.Y. Pattern Jury Instr. § 2:126; see also Robinson v. Reed- Prentice Division of Package Machinery Co., 49 N.Y.2d 471, 480 (1980) (“A cause of action in negligence will lie where … a manufacturer was responsible for a defect that caused injury, and [] the manufacturer could have foreseen the injury”). “A manufacturer also has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known,” as well as “unintended uses of a product provided these uses are reasonably foreseeable.” Liriano v. Hobart Corp., 92 N.Y.2d 232, 237 (1998). Thus, notice is also an element of a negligent failure to warn claim. B. Admissibility Of Similar Incident Evidence Axiomatically, evidence of other similar incidents (“OSI”) is admissible at trial to establish notice and/or proof of the existence of a dangerous condition. Hyde v. Cty. of Rensselaer, 51 N.Y.2d 927, 929 (1980); Martin v. Our Lady of Wisdom Reg'l Sch., 151 A.D.3d 838, 839 (2d Dept 2017); Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 336 (1986). “[T]here are no hard or 3 4 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 fast rules as to what degree of similarity there must be to make the evidence admissible. Rather, in determining the admissibility of OSI evidence, the appropriate focus is on all of the ‘circumstances’ surrounding the OSI evidence, not necessarily any specific similarity.” Adams v. Toyota Motor Corp., 867 F.3d 903, 913 (8th Cir. 2017). Ultimately, the Supreme Court “necessarily is vested with broad discretion to determine the materiality and relevance of proposed [prior incident] evidence.” Martin, 151 A.D.3d at 839. The “degree of similarity required” for admission of similar prior incidents “depends upon the purpose for which the prior accidents are offered.” Schmelzer v. Hilton Hotels Corp., No. 05 Civ. 10307, 2007 WL 2826628, at *2 (S.D.N.Y. Sept. 24, 2007). “[W]here the prior accidents are offered only to show that the defendant had notice,” courts have applied a “relaxed standard” to the degree of similarity required. Id.; see also 1 McCormick On Evid. § 200.4 (“Since all that is required is that the previous injury or injuries be such as to call defendant’s attention to the dangerous situation that resulted in the litigated accident, the similarity in the circumstances of the accidents can be considerably less than that which is demanded when the same evidence is used for one of the other valid purposes”). “Generally, different models of a product will be relevant if they share with the accident- causing model those characteristics pertinent to the legal issues raised in the litigation.” Fine v. Facet Aerospace Prods. Co., 133 F.R.D. 439, 441 (S.D.N.Y. 1990); see also Mestman v. Ariens Co., 135 A.D.2d 516, 517 (2d Dep’t 1987) (ordering disclosure of different model numbers and model years for snow blowers “identical or substantially similar to the model claimed to be defective”). Differences between other incidents and the instant action such as the surrounding circumstances of the accidents, the year of production of the products, the model of the products, or immaterially distinct characteristics between the products, go to the weight of the evidence, not its admissibility. Smalley v. Harley-Davidson Motor Co. Group LLC, 134 A.D.3d 1490 (4th Dep’t 4 5 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 2015); Bellinger v. Deere & Co., 881 F.Supp. 813, 818 (N.D.N.Y. 1995); Bolm v. Triumph Corp., 71 A.D.2d 429, 438-39 (4th Dep’t 1979); Glazer v. Socata, S.A.S., 75 Misc.3d 605, 611 (Sup. Ct. Monroe Cnty. 2022); Schmelzer, 2007 WL 2826628, at *3. The foregoing principles are illustrated in Smalley v. Harley-Davidson, an action involving plaintiffs injured after their motorcycle lost electrical power while in operation – i.e., a “quit while riding” event. The Fourth Department found that the Supreme Court erred in precluding plaintiffs from presenting evidence that their motorcycle suffered from a similar defect as other motorcycles previously recalled by Harley. Smalley, 134 A.D.3d at 1490-91. The Appellate Division identified two errors in the trial court’s preclusion. First, the court erred in precluding the testimony of plaintiffs’ expert, who was expected “to testify in part that plaintiffs’ motorcycle does not differ in any material respect from those included in the 2004 recall, despite the fact that plaintiffs’ motorcycle did not have the same stator as the motorcycles affected by the recall.” Id. at 1492. Second, the court erred in precluding prior accident complaints involving other “quit while riding” events. As the Court explained, “plaintiffs should be allowed the opportunity to demonstrate that the customer complaints they seek to introduce are admissible because they involve motorcycles sufficiently similar to theirs and accidents sufficiently similar to the subject accident, even if the motorcycles that are the subject of those complaints are not identical in model and year of manufacture to plaintiffs’ motorcycle.” Id. at 1493 (emphasis added). More recently, in Glazer v. SOCATA, S.A.S. the Supreme Court allowed a plaintiff to introduce evidence of other similar incidents involving different airplane models. Glazer, 75 Misc.3d at 612. The crux of the plaintiff’s products liability action was that an allegedly defective pressurization system caused damage to an overheat thermal switch (“OTSW”), thereby sending false signals to the decedent-operator and causing depressurization of the cabin. Id. at 609-610. Defendant SOCATA moved to preclude prior incident evidence of faulty OTSWs in other 5 6 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 SOCATA planes that caused depressurization events, arguing the other incidents were not substantially similar because they involved “dissimilar facts” with “differences in operation of the plane.” Id. at 610. The Supreme Court disagreed with SOCATA’s analysis, recognizing that “‘[s]ubstantial similarity depends upon the underlying theory of the case … and is defined by the particular defect at issue.” Id. at 612 (quoting Guild v General Motors Corp., 53 F Supp.2d 363, 367 (W.D.N.Y. 1999)). Therefore, because plaintiff established the prior incidents involved similar false signals with some evidence of defective OTSWs, the court found that the prior incidents were substantially similar to the subject action and, thus, admissible at trial. Id. at 612; see also McKeon v. Sears Roebuck & Co., 190 A.D.2d 577, 577 (1st Dep’t 1993) (“Nor is there merit to defendants’ contention that disclosure of accidents, complaints, and lawsuits … should be limited only to claims arising out of rip cut accidents such as was purportedly sustained by plaintiff, since it would be relevant to know whether the absence of a lower blade guard renders the machine dangerous regardless of the particular task being performed.”). And in Schmelzer v. Hilton Hotels, a products liability action involving allegedly defectively designed exercise balls that burst suddenly during ordinary use, the plaintiffs sought to introduce evidence at trial that defendant had notice of their defective design through prior incidents involving bursting exercise balls. Schmelzer, 2007 WL 2826628, at *1-2. The court allowed the plaintiffs to introduce evidence of these other incidents, including multiple incidents of similar-sized balls and at least one incident involving a larger ball than that involved in plaintiff’s accident. Id. at *2. “The possible differences hypothesized by Valeo-the model of the balls and the way they were manufactured-may diminish the weight of the prior accidents on the issue of notice but are not material enough to negate the prior accidents’ relevance.” Id. at *3; see also Bolm, 71 A.D.2d at 438-39 (“The exhibit and testimony should have been received because there was credible evidence that the two tanks were the same in all significant respects. The fact 6 7 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 that they were manufactured in different years went to the weight to be accorded to the evidence, not its admissibility”). C. Other Similar Incident Evidence Is Admissible To Demonstrate Caterpillar’s Notice Caterpillar does not dispute that substantially other similar incident evidence is admissible at trial. Rather, Caterpillar contends that this court should issue a preliminary order precluding evidence and testimony of all prior incidents, based on Caterpillar’s flawed view of the dissimilarity between this action and two other incidents – Tahsin Sayeed v. Caterpillar, et al., Sup. Ct. Queens (Index No. 6166/2013) and Caponegro v. Caterpillar, Inc., Superior Ct. N.J. (No. MRS- L-1364-05; MRS-L-520-06) – identified in ACD/EIG’s Notice to Admit. According to Caterpillar, these prior incidents are not substantially similar because they “do not involve Caterpillar 349F Excavators,” “arise out of fact patterns which are not substantially similar to the present matter,” involve excavators manufactured before the Caterpillar 349F, and involve allegations relating to the absence of a rearview camera. While Caterpillar’s focus on two prior incidents does not address all other prior incidents similar to the instant one, it nonetheless fails to identify any meaningful distinction between this action and the Sayeed and Caponegro actions. All of these incidents involved blind spots and visibility issues encountered while operating heavy earth-moving Caterpillar machinery (excavators) in reverse, resulting in severe injury to the plaintiffs. Ultimately, because the defects and hazards in all of these cases are substantially similar, evidence of these other incidents is admissible at trial. 1. Tahsin Sayeed v. Caterpillar Like the instant matter, the Sayeed case raised issues against Caterpillar concerning blind spots and limited visibility in its large earth-moving machinery operating in reverse on a construction site. To briefly summarize the facts of the Sayeed incident, Mr. Sayeed was injured 7 8 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 “when an excavator (CAT 320-D L), was backing up” on an excavation project; the operator had a “limited view” and testified to “blind spots everywhere” as he operated the excavator in reverse; and Mr. Sayeed suffered a gruesome left leg injury requiring partial amputation after the “excavator’s right track” struck his leg while operating in reverse (Ex. D, New York City Department of Design and Construction Report; Ex. G, John Toppi Deposition Transcript, p. 98). Even at first blush, the mechanism of this accident was substantially similar to Plaintiff Andrade’s accident. Both accidents involved an excavator backing up on an excavation project. Next, each incident involved limited visibility of workers positioned behind the operator while the excavator moved in reverse. And, similar to Sayeed, in this case the right track of an excavator moving in reverse struck an object necessitating the amputation of a worker’s left leg. Against this backdrop, Caterpillar’s grievance concerning minute and irrelevant differences in the “facts and circumstances” of these cases such as the fact that the right excavator track here hit a barrier that crushed Plaintiff’s left leg, whereas in Sayeed the right excavator track struck plaintiff’s left leg directly, is entirely unavailing. It is well-established that slight differences in circumstances such as these do not defeat a showing of substantial similarity – rather, different facts and circumstances go only to the weight afforded to the other incident evidence, not its admissibility. See Smalley, 134 A.D.3d at 1492-93; Glazer, 75 Misc.3d at 612; see also McKeon, 190 A.D.2d at 577. Along these lines, Caterpillar’s claim that this accident happened because of misinterpreted hand signals is entirely unsupported. In truth, Wade testified he never saw Plaintiff when he looked in his side mirrors before backing up the excavator. At any rate, in a products liability case it is appropriate to define the similarity of accidents by the defect at issue. Bellinger, 881 F. Supp. at 817-18; Glazer, 75 Misc.3d at 612. In this respect, the crux of the products liability claim in Sayeed involved the same allegations that are alleged here: Caterpillar negligently designed the excavator to allow and permit “blind spots” while 8 9 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 operating in reverse; allegations that the excavator was not reasonably safe; and Caterpillar’s failure to install a WAVS camera system on the subject excavator (Ex. E, Sayeed Bill of Particulars; Ex. F, Sayeed Amended Complaint). And, like Mr. Wade here, the operator of the excavator in Sayeed testified to blind spots while operating in reverse (Ex. G, Excerpts from John Toppi Deposition Transcript, p. 98). Caterpillar cannot honestly claim that, given the allegations and the facts surrounding the incident that took Mr. Sayeed’s leg, it was without any awareness that its excavators suffered from blind spot issues and visibility limitations while operating in reverse. In fact, the plaintiff in Sayeed argued that Caterpillar was very much aware of the hazardous blind areas associated with rearward operation of its excavators for decades prior to its sale of the 320DL— an assertion that was supported by reports from the War Department in 1943, the U.S. Bureau of Mines Report in 1978, the Mitsubishi Heavy Industry safety report in 1989, and numerous cases arising from the same rearview blind spot hazard naming Caterpillar as the defendant (Ex. H, Mark Cannon Affirmation in Sayeed, pp. 6-10). The plaintiff in Sayeed also obtained an expert witness who opined after inspecting the Model 320D L that it was manufactured in such a way that it was “camera ready” for installation of the WAVS camera system, but a camera necessary to prevent this accident was not included as standard on the excavator (Ex. H, at p. 16, ¶¶ 70-72). The instant action likewise raises similar issues and arguments against Caterpillar concerning its awareness of the hazards associated with rearward operation of excavators, blind spots and limited visibility, and a Caterpillar excavator model that failed to include the necessary WAVS camera system to render the product reasonably safe (Ex. I, Crandall Report, pp. 13-14, ¶¶ 8-10, pp. 47-48, ¶¶ 96-101). Like Sayeed, this action also involves allegations of Caterpillar’s awareness of a hazardous blind area issues, as well as the claim that these defects are curable at minimal cost (Ex. I, pp. 25-29, ¶¶ 40-58, p. 47, ¶ 95). As in Sayeed, ACD/EIG also supports its 9 10 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 assertions not only with substantial testimonial evidence, but evidence that Caterpillar’s right sideview cameras were standard features for excavators sold in the EU in compliance with European requirements, computer simulations at the Hydraulic Excavator Development Center in Japan (after the Sayeed incident) were run to test the 349L’s visibility, and mirrors and glass around the cab were incorporated in response to the sideview blind spot after the design and testing phase of the 349F (Ex. J, Caterpillar’s Response to Notice to Admit dated May, 20, 2022, p. 6; Ex. K, Dennis O’Rourke Deposition Transcript, p. 92). Like Sayeed, ACD/EIG’s expert here inspected the Model 349F L and also found it was manufactured ready for installation of a side- view WAVS camera system but, again, Caterpillar failed to include this camera as standard equipment on its excavator (Ex. I, p. 14, ¶¶ 9-10, p. 22, ¶ 34). The foregoing showing establishes the substantial similarity between this action and the Sayeed incident in all material respects concerning the alleged defects and hazards posed by Caterpillar’s machinery when operating in reverse. Caterpillar’s attempt to distinguish these incidents based on the different excavator models and the year of manufacture is unavailing. Courts have made clear that differences in model and manufacturing year relate only to the weight of the evidence, not its admissibility. See Smalley, 134 A.D.3d at 1492-93 (different models and year of manufacture do not preclude admissibility); Schmelzer, 2007 WL 2826628, at *3 (model and manufacturing go to weight); Glazer, 75 Misc.3d at 612 (allowing evidence of similar incidents involving different plane models). This is particularly so where the accident-causing characteristics and defect are substantially similar – blind spots and limited operator visibility while operating heavy earth-moving Caterpillar excavators in reverse. See Fine, 133 F.R.D. at 441; Mestman, 135 A.D.2d at 517; Bolm, 71 A.D.2d at 438-39. Along these lines, the unsubstantiated claims of Caterpillar’s counsel that Sayeed is not substantially similar because the Model 320D is considered a “medium” excavator, whereas the 10 11 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 Model 349F is considered “large,” is also inapposite to the issue of admissibility. Schmelzer, 2007 WL 2826628, at *2-3 (allowing into evidence prior incidents involving different sized balls); see also In re Gen. Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 (JMF), 15 Civ. 8324 (JMF), 2017 WL 4417693, at *6 (S.D.N.Y. Oct. 3, 2017) (“Scruggs may offer limited evidence concerning the fifty-eight other incidents for purposes of proving notice” even though “[f]ifty-five of those incidents may well have involved different vehicle platforms, with different ignition switches and systems”). As explained by ACD/EIG’s expert, Caterpillar has known about widespread issues with blind spots on various models for decades and, in 2004, it issued a report with blind area diagrams for Models 320C and 325B hydraulic excavators, which are smaller than Model 349F (Ex. I, at pp. 25-26, ¶¶ 43-44). And, as the operator in this incident explained, the other excavator on the jobsite, Model 335, also suffered from blind spots (Ex. B, at p. 15). In sum, there is substantial evidence on this record that the minor distinctions Caterpillar draws between “medium” and “large” excavators is immaterial to the issues of blind spots and limited visibility while operating in reverse. These are substantially similar defects and hazards notwithstanding any difference in excavator model and “[i]t is not necessary that the facts and circumstances surrounding the accidents be identical; substantial similarity is all that is required.” See Holmes v. Sahara Coal Co., 131 Ill.App.3d 666, 672 (1985) (rejecting Caterpillar’s argument that prior accidents involving different models of tractors are “totally dissimilar”). Finally, Caterpillar’s focus on the allegation in Sayeed that Caterpillar should have installed a rear WAVS camera system, as opposed to claims that Caterpillar should have installed a right-side WAVS camera system here, fails to disprove the substantial similarity between the two incidents and the defects and hazards of the excavators involved in those cases. For starters, Mr. Sayeed advanced multiple alternative theories for Caterpillar’s negligent design and feasible alternative designs, not just the installation of a rear-view WAVS camera. Setting this aside, 11 12 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 Caterpillar’s argument is beside the point. This action and Sayeed both involve two-tracked, heavy earth-moving excavators, both of which Caterpillar manufactured “camera ready” for installation of the WAVS camera system but, ultimately, did not include the necessary cameras necessary to maximize safety at minimal costs. Thus, just as is alleged here, in Sayeed, the plaintiff alleged the excavator suffered from “blind spots” and the accident was caused by Caterpillar’s failure to “provide the operator with adequate and sufficient rearward visibility” and “adequate and proper visibility aids … and/or other safety devices, to effectively minimize and control such hazards” (Ex. E, at p. 3). The substantial similarities between the incident in Sayeed and this case is relevant to Caterpillar’s notice of defects and hazards posed by its excavators and, as such, it is probative of Caterpillar’s failure to use reasonable care in its design and warnings related to the Model 349F L. For the foregoing reasons, the Sayeed incident is admissible at trial as a substantially similar other incident relevant to ACD/EIG’s third-party claims against Caterpillar. 2. Anunciacao v. Caterpillar Inc., No. 07-10904-JGD (D. Mass. 2011) As addressed above, while Caterpillar’s motion in limine is stylized as a motion to preclude “all evidence and testimony regarding alleged other incidents,” the motion itself addresses only three prior lawsuits – Sayeed, Metro, and Estate of Caponegro. Yet, as noted by the plaintiff’s expert report in Sayeed, there are numerous instances where it was claimed that a person had been seriously injured or killed by a reverse moving Caterpillar machine due, at least in part, to the operator’s limited visibility (Ex. H, at pp. 9-10). At least one of those cases, Anunciacao v. Caterpillar Inc., is not addressed by Caterpillar but, in all relevant ways, is substantially similar to this action and, therefore, should be admissible on the issue of notice. Smalley, 134 A.D.3d 1490; Glazer, 75 Misc.3d 605; Schmelzer, 2007 WL 2826628; see also Bolm, 71 A.D.2d 429. 12 13 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 Like the instant action and Sayeed, the Anunciacao action also involved an injured worker whose left leg was amputated below the knee after standing to the right rear of a Caterpillar excavator (Model 320CU) without a proper WAVS camera system (Ex. L, Anunciacao Memorandum). Thus, the issues in Anunciacao centered on Caterpillar’s defective design of its excavator, which plaintiff alleged was “unreasonably dangerous” given the “available … inexpensive …[and] reasonable safeguards available to control the subject hazard of impaired visibility, the blind zones around the equipment” (Ex. M, Anunciacao Trial Transcript 3-10:7-12, 3-11:4-6). Furthermore, plaintiff asserted that, although Caterpillar was “aware of the fact that [the blind spot] is a hazard” and “developed the visibility assistance device, the camera system, to allow that blind spot to be viewed by the operator,” Caterpillar failed to properly equip its dangerous machines despite its knowledge (Ex. M, at 3-22:6-11). 2 D. There Is No Prejudice To Caterpillar That Outweighs The Probative Nature Of Similar Incident Evidence Caterpillar contends that similar prior incidents should be precluded because such evidence is prejudicial and may confuse or mislead the jury. However, issues of Caterpillar’s notice of excavator defects and dangers when operating in reverse, Caterpillar’s reasonableness in designing the 349F L excavator given its notice, and the adequacy of its warnings in light of known or foreseeable uses and misuses of the excavator, are directly at the heart of ACD/EIG’s negligence- based claims in this action and, thus, of high probative value. The ability of ACD/EIG to put on its case with highly probative evidence of the other similar incident evidence significantly outweighs the hypothetical issues raised by Caterpillar. Furthermore, the alleged issues raised by Caterpillar, if at all problematic, could be cured by limiting instructions that preserve all parties’ 2 At trial, ACD/EIG would present an additional offer of proof to the court to demonstrate the substantial similarity between the two cases, if necessary. 13 14 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 rights. Caterpillar failed to prove it is prejudiced by admission of relevant evidence of other, substantially similar incidents involving its excavators. Evidence is admissible if it is relevant and its probative value outweighs the risk of undue prejudice. Mazella v. Beals, 27 N.Y.3d 694, 709 (2016). In this respect, trial courts have “wide discretion in making evidentiary rulings.” Id.; Rojas v. New York City Transit Authority, 176 A.D.3d 990, 991 (2d Dep’t 2019). In negligence actions where a condition’s dangerousness or a party’s notice of the condition is at issue, it has consistently been held that records of prior similar accidents are admissible. E.g., Klatz v. Armor Elevator Co., Inc., 93 A.D.2d 633, 637 (2d Dep’t 1983); Coan v. Long Island Rail Road, 246 A.D.2d 569, 569 (2d Dep’t 1998). As addressed herein, the relevancy of other incident evidence turns on the issue of “substantial similarity.” E.g., Smalley, 134 A.D.3d 1490. “When such similarity has been first shown, the proof of prior accidents has sufficient probative value to justify its admission as another species of circumstantial evidence.” Kaplan v. City of New York, 6 A.D.2d 489, 491 (1st Dep’t 1958); see also Tomassi v. Town of Union, 58 A.D.2d 670, 671 (3d Dep’t 1977) (affirming admission of prior accident evidence, stating “it is only necessary that the relevant conditions be shown to be similar to those existing at the time of the accident in question”). Here, an element of ACD/EIG’s negligence-based design defect claim requires a showing that Caterpillar knew or, in the exercise of reasonable care, should have known, that the excavator was not reasonably safe. N.Y. Pattern Jury Instr. § 2:126. With regard to failure to warn, ACD/EIG also seeks to demonstrate that Caterpillar failed to adequately warn against dangers resulting from foreseeable uses of its product which it knew or should have known of, as well as unintended uses that were reasonably foreseeable. Liriano, 92 N.Y.2d at 237. As demonstrated herein, substantially similar other incidents are probative of Caterpillar’s notice of defects with its 14 15 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 excavators and the dangers posed by them. Clearly, ACD/EIG’s right to prove the elements of its case and its ability to do so with relevant evidence cannot be questioned. While Caterpillar speculates that the jury may be confused or misled by presentation of evidence of other similar incidents, the Court of Appeals has recognized the proper remedy for any alleged confusion or prejudice is not preclusion, but a limiting instruction. See Hyde, 51 N.Y.2d at 929 (allowing prior accident evidence as evidence of dangerous condition and notice thereof and noting that defendant’s recourse was “to request limiting instructions”). Limiting instructions have been recognized to “mitigate[] if not eliminate[]” potential prejudice to a party or confusion for the jury. Curtin v. J.B. Hunt Transp., Inc., 79 A.D.3d 1608, 1610 (4th Dep’t 2010); see also Varano v. Forba Holdings, LLC, 43 Misc.3d 642, 649 (Sup. Ct. Onondaga Cnty. 2014) (“With appropriate limiting instructions … there will be no juror confusion and no prejudice to a substantial right of any of the parties”); Gayle v. City of New York, 256 A.D.2d 541, 542-43 (2d Dep’t 1998) (trial court should have admitted evidence with limiting instruction). Finally, Caterpillar is essentially arguing that the Court should preclude substantially similar prior incidents because they are damaging to its defense. However, “otherwise admissible evidence bearing directly on the ultimate question to be determined at trial … does not become subject to exclusion simply because it is devastating to the position of the party seeking to exclude it.” Cheeks v. City of New York, 123 A.D.3d 532, 552 (1st Dep’t 2014). The fact that Caterpillar was on notice of blind spots and visibility issues with its excavators from substantially similar incidents does not constitute prejudice warranting preclusion of this evidence. In fact, any alleged “prejudice of the evidence in question arises precisely from its extremely probative nature.” Id. As shown herein, the probative value of this evidence outweighs all counterarguments raised by Caterpillar and demonstrates this evidence should be admitted at trial. 15 16 of 17 FILED: KINGS COUNTY CLERK 04/24/2024 03:45 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 568 RECEIVED NYSCEF: 04/24/2024 CONCLUSION In sum, because New York law is clear that substantially similar other incidents are admissible at trial, Caterpillar’s motion in limine to exclude all evidence and testimony regarding other similar incidents should be denied. The substantial similarity between the Sayeed and Anunciacao cases as identified herein demonstrates the relevancy of these prior incidents to the inquiry into Caterpillar’s reasonableness in designing the 349F L excavator, given its notice of defects and hazards posed when operating in reverse on a construction site. The prior incidents are also probative of ACD/EIG’s failure to warn claim. Given Caterpillar’s awareness of severe, prior injuries caused by operating its excavators in reverse, there are genuine issues concerning Caterpillar’s design and warning as it relates to the subject excavator. The jury should be allowed to hear evidence to this effect in its assessment of Caterpillar’s conduct. Dated: New York, New York April 24, 2024 LONDON FISCHER LLP By: /s/ Anthony Tagliabambe Anthony Tagliagambe Attorneys for Third-Party Defendants/Second Third-Party Plaintiffs Atlantic Coast Dismantling, LLC, Environmental and Infrastructure Group, LLC Atlantic Coast Dismantling Environmental and Infrastructure Group JV 59 Maiden Lane, Floor 39 New York, New York 10038 Tel: (212) 972-1000 16 17 of 17