Preview
FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018
NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
__________________________________________
RONY ANDRADE and ALBA VANEGAS, ) Index No. 512446/18
)
Plaintiffs, )
)
v. )
)
)
)
THE PORT AUTHORITY OF NEW YORK AND )
NEW JERSEY, SKANSKA KOCH, INC., KIEWIT)
INFRASTRUCTURE CO., and SKANSKA )
KOCH/KIEWIT Joint Venture, )
)
Defendants. )
__________________________________________)
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THE PORT AUTHORITY OF NEW YORK AND )
NEW JERSEY, SKANSKA KOCH, INC., KIEWIT)
INFRASTRUCTURE CO., and SKANSKA )
KOCH/KIEWIT Joint Venture, )
)
Third-Party Plaintiffs, )
)
v. )
)
ATLANTIC COAST DISMANTLING, LLC, )
ENVIRONMENTAL AND INFRASTRUCTURE )
GROUP, LLC, ATLANTIC COAST )
DISMANTLING ENVIRONMENTAL AND )
INFRASTRUCTURE GROUP JV, and AMS )
SAFETY LLC, )
)
Third-Party Defendants. )
__________________________________________)
)
ATLANTIC COAST DISMANTLING, LLC, )
ENVIRONMENTAL AND INFRASTRUCTURE )
GROUP, LLC, and ATLANTIC COAST )
DISMANTLING ENVIRONMENTAL AND )
INFRASTRUCTURE GROUP JV, )
)
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Second Third-Party Plaintiffs,
)
)
v. )
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CATERPILLAR INC., )
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Second Third-Party Defendant. )
__________________________________________)
THE PORT AUTHORITY OF NEW YORK AND )
NEW JERSEY, SKANSKA KOCH, INC., KIEWIT )
INFRASTRUCTURE CO., and SKANSKA KOCH )
KIEWIT, Joint Venture, )
)
Third Third-Party Plaintiffs, )
)
v. )
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CATERPILLAR INC., )
)
Third Third-Party Defendant. )
__________________________________________)
ATTORNEY AFFIRMATION IN SUPPORT OF CATERPILLAR INC.’S MOTIONS IN
LIMINE
Timothy R. Freeman, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms, under the penalties of perjury pursuant to CPLR § 2106, that the
following statements are true, except for those made upon information and belief:
1. I am a Partner in the law firm of Tanenbaum Keale LLP, attorneys for Third-Party
Defendant Caterpillar Inc. (“Caterpillar”). I am fully familiar with all pertinent facts and
circumstances.
2. This Affirmation is submitted in support of Caterpillar’s Motions In Limine.
3. The following exhibits are attached:
• Exhibit “A” – A true copy of Plaintiffs’ Verified Complaint;
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• Exhibit “B” – A true copy of the transcript of the deposition of plaintiff Rony Andrade
(cited portions);
• Exhibit “C” – A true copy of the transcript of the deposition of John Wade (cited
portions);
• Exhibit “D” – A true copy of the transcript of the deposition of Brad Minkovitz (cited
portions);
• Exhibit “E” – A true copy of the transcript of the deposition of Michael Cadugan (cited
portions);
• Exhibit “F” – A true copy of the transcript of the deposition of Leonardo Iacoviello
(cited portions);
• Exhibit “G” – A true copy of the Subcontract Agreement between ACD and Skanska
(cited portions);
• Exhibit “H” – A true copy of ACD’s Response to Caterpillar’s Second Notice for
Discovery and Inspection;
• Exhibit “I” - A true copy of the Caterpillar SIMSi Sales and Service Detail;
• Exhibit “J” – A true copy of the transcript of the deposition of Dennis O’Rourke (cited
portions);
• Exhibit “K” – A true copy of the Operation and Maintenance Manual that was shipped
with the subject Excavator (cited portions);
• Exhibit “L” – A true copy of the AEM Safety Manual that was shipped with the subject
Excavator (cited portions);
• Exhibit “M” – A true copy of ACD’s CPLR 3101(d) Expert Disclosure for Robert
Crandall;
• Exhibit “N” – True copies of various Affidavits of Service on AMS Safety, LLC,
related to pleadings and subpoenas;
• Exhibit “O” – A true copy of the Affidavit of Frank Manfredi;
• Exhibit “P” – A true copy of the Decision and Order of Justice Lillian Wan, J.S.C.,
dated December 20, 2021, adjudicating the parties’ motions for summary judgment;
• Exhibit “Q” – A true copy of the OSHA Investigation Report;
• Exhibit “R” – A true copy of Caterpillar’s Final Report, entitled “Construction Vehicle
and Equipment Blind Area Diagrams,” dated June 2, 2003
• Exhibit “S” – A true copy of Caterpillar’s Contract Modification - Final Report, entitled
“Construction Vehicle and Equipment Blind Area Diagrams,” dated June 29, 2004.
• Exhibit “T” – A true copy of the Center for Disease Controls Contract with Caterpillar;
• Exhibit “U” – A true copy of the Affidavit of Robert Hefner;
• Exhibit “V” – A true copy of ACD’s Seventh Notice to Admit;
• Exhibit “W” – A true copy of Plaintiffs’ Third Supplemental Bill of Particulars;
• Exhibit “X” – A true copy of Plaintiffs’ Expert Disclosure for Stacy Booth, B.A;
• Exhibit “Y” – A true copy of ACD’s Construction Work Plan;
• Exhibit “Z” – A true copy of the Expert Report of Craig Steigerwalt.
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The Incident
4. This matter arises from an incident that occurred on November 28, 2017, on the
Bayonne Bridge in Staten Island, New York. See Exhibit A, p. 23. At that time, plaintiff Rony
Andrade was employed as a laborer by third-party defendant/second third-party plaintiff Atlantic
Coast Dismantling, LLC, Environmental and Infrastructure Group, LLC, and Atlantic Coast
Dismantling Environmental and Infrastructure Group JV (collectively, “ACD”). Id.
5. At approximately 1:30 PM, ACD employee John Wade was operating a Caterpillar
Model 349F Hydraulic Excavator, Serial Number BZ200867 (the “Excavator”) in reverse when
the right Excavator track struck “a concrete jersey barrier, dislodging the barrier and causing it to
fall down 3-4 feet striking Plaintiff and causing him to sustain” injuries to his left leg. Id.
6. There is no allegation that the Excavator struck the plaintiff. Rather, plaintiff’s
allegation is that the Excavator struck a nearby concrete jersey barrier, which toppled over and
pinched plaintiff’s left leg against the parapet siding of the bridge.
7. The below photographs of the subject Excavator were taken at the scene of the
incident.
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8. At the time of the incident, plaintiff positioned himself in a narrow space behind
the concrete jersey barrier and the metal parapet siding of the bridge for the purpose of acting as a
signal man for the machine operator, Mr. Wade. See Exhibit B, p. 117.
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9. The below photograph of the incident scene, taken by a surveillance camera shortly
before the incident occurred, shows the plaintiff, positioned between the concrete jersey barrier
and the siding of the bridge, giving hand signals to Mr. Wade, who is in the cab of the Excavator,
using a scissor attachment to dismantle a portion of the bridge.
10. The below photograph, taken by the same surveillance camera immediately after
the incident, shows the concrete barrier toppled over onto the siding of the bridge.
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11. As demonstrated in the above photographs, plaintiff was in “clear view” of the
machine operator, Mr. Wade, at the time of the incident, and Mr. Wade testified that he knew
where the plaintiff was positioned at the time of the incident. See Exhibit B, p. 120, and Exhibit
C, p. 114.
12. Plaintiff testified that, at the time of the incident, he and Mr. Wade were able to see
each other clearly. See Exhibit B, p. 101.
13. Mr. Wade could see a portion of the jersey barrier from his position in the Excavator
cab, and he could see that the jersey barrier was positioned approximately 2 feet from the right
Excavator track. See Exhibit C, p. 129-30.
14. He similarly knew where the plaintiff was positioned in relation to the jersey
barrier. Id. at p. 114.
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15. Mr. Wade could see the first half of the jersey barrier from his position in the
Excavator cab. Id.
16. Further, Mr. Wade looked in the right-side mirror before moving in reverse. Id. at
p. 133.
17. The right-side mirror provided visibility to the right Excavator track, a portion of
the jersey barrier and the right excavator track. See Exhibit C, p. 133. Thus, Mr. Wade knew where
the jersey barrier was and where the plaintiff was at the time of the incident, and was well aware
of the hazard at issue in this matter. Id., p. 82, 88.
18. Immediately prior to the incident, Mr. Wade had finished dismantling a section of
the bridge and plaintiff signaled for him to stop. See Exhibit B, p. 64. Plaintiff gave visual hand
signals to Mr. Wade at the time of the incident, demonstrating that visibility of the plaintiff was
not compromised. Id. at p. 61. The space between the jersey barrier and the parapet siding of the
bridge, where plaintiff was standing, was approximately 1.5 feet in length. Id. at p. 117.
19. After plaintiff gave Mr. Wade a signal to stop, Mr. Wade moved the Excavator in
reverse, causing its right track to collide with the jersey barrier, knocking it over and pinching
plaintiff’s left leg against the parapet siding of the bridge. Id.
20. The below photograph, taken on the day of the incident, shows the Excavator on
the Bayonne Bridge, with the concrete jersey barrier tipped over and resting on the parapet siding
of the bridge.
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21. Plaintiff testified that he had been standing in the same spot for approximately 1.5
hours prior to the incident and had been working at the site with Mr. Wade for several months. Id.
at p. 94, 122.
22. Mr. Wade testified that he knew the plaintiff was positioned in between the jersey
barrier and the parapet siding of the bridge at the time of the incident, but did not tell the plaintiff
to remove himself from that dangerous position. See Exhibit C, p. 123. Mr. Wade also knew that
the right Excavator track was approximately two feet away from the jersey barrier. Id. at p. 124.
Mr. Wade could see the first ten feet of the jersey barrier from his vantage point in the Excavator
cab. Id. at 129.
Evaluation of the Incident
23. Mr. Wade testified that the plaintiff should not have been standing behind the jersey
barrier because of the obvious danger associated with it tipping over. See Exhibit C, p. 151. More
specifically, Mr. Wade knew that jersey barriers are prone to tipping over, he had observed jersey
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barriers tipping over on multiple occasions prior to the incident, and he knew that the subject jersey
barrier was not pinned to the ground. Id. Mr. Wade also knew that it was “standard operating
procedure” to make sure that the surrounding area is completely clear before moving the Excavator
in reverse. Id. at p. 163.
24. The Project Manager for the Bayonne Bridge Reconstruction Project, Brad
Minkovitz, testified that he would not have allowed plaintiff to stand between the jersey barrier
and the parapet siding of the bridge because it is a “bad spot.” See Exhibit D, p. 97-98. If Mr.
Minkovitz was aware that plaintiff was standing in that position, he would have immediately
stopped the work and directed plaintiff to move to a safe location. Id.
25. Similarly, the Superintendent for the Bayonne Bridge Reconstruction Project,
Michael Cadugan, testified that he never saw plaintiff standing in between the jersey barrier and
the parapet siding prior to the incident, but if he had, he would have told plaintiff to “get out of
there” because “it is an obvious pinch point.” See Exhibit E, p. 95-96.
26. Leonardo Iacoviello, the Resident Engineer employed by the Port Authority of New
York and New Jersey, testified that the plaintiff was in a “position that was – I think we all felt
maybe wasn’t the best location for him to be in.” See Exhibit F, p. 177. According to Mr.
Iacoviello, the plaintiff was in a “tight spot,” and the jersey barrier “should have been pulled to the
side and pushed back.” Id. at 189.
ACD Violated its Own Construction Work Plan
27. Pursuant to its contract with Skanska, ACD created a Construction Work Plan for
the NY Approach Deck Demolition on the Bayonne Bridge. See Exhibit Y.
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28. In addition to identifying the scope of work, ACD’s Construction Work Plan
outlined potential hazards during operations, along with mitigation controls and implementation
procedures to reduce the probability of those hazards. Id.
29. Among the potential hazards that ACD identified was “Struck By/Caught Between”
pinch points. Id. at p. 16. Pursuant to its Construction Work Plan, ACD was required to “identify
pinch points” and “inspect the work area for possible struck by/caught between hazards” on a daily
basis. Id.
30. ACD’s Construction Work Plan also clearly instructs workers to “not stand or walk
behind or alongside moving equipment.” Id.
31. The Construction Work Plan further requires that the “[t]ravel path [of the
Excavator] shall be evaluated prior to moving” the machine. Id. at p. 33.
32. More importantly, the Construction Work Plan requires that “[s]ignal people must
be properly trained in the use of hand signals.” Id.
33. ACD failed to comply with these important safety requirements that were set forth
in its own Construction Work Plan.
34. In particular, Messrs. Wade and Andrade failed to identify a pinch point between
the jersey barrier and the parapet siding of the bridge that was characterized by Mr. Cadugan as
“an obvious pinch point.” See Exhibit E, p. 95-96.
35. Further, Mr. Andrade was standing alongside the moving Excavator at the time of
the incident, and the travel path of the Excavator was not evaluated by either Mr. Andrade or Mr.
Wade before the machine began to move in reverse.
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36. In addition, Messrs. Wade and Andrade testified that ACD did not provide any
training or instructions with respect to hand signals or communication protocols. See Exhibit B, p.
92, 112.
37. Mr. Cadugan confirmed that ACD provided no training or instructions regarding
hand signals or communication protocols. See Exhibit E, p. 85.
38. Similarly, Mr. Wade testified that he and Mr. Andrade did not have an
“understanding of what hand signals would be used and how they would be interpreted.” See
Exhibit C, p. 29. Significantly, Mr. Wade testified that he did not always understand the hand
signals that Mr. Andrade gave to him. Id. at p. 30.
39. Ultimately, ACD’s failure to ensure that its employees had clear and well-
understood hand signals and communication protocols was a substantial cause of the incident.
Specifically, Mr. Andrade testified that the incident occurred when he signaled for Mr. Wade to
“stop,” and Mr. Wade misinterpreted his signal and continued to move the Excavator and it struck
the jersey barrier. See Exhibit B, p. 64.
Training and Instructions Provided to the Plaintiff
40. Plaintiff maintains that he was instructed by ACD to always be visible to the
operator of the Excavator, but was never told not to stand between the jersey barrier and the parapet
siding of the bridge. See Exhibit B, p. 60. He was never told not to stand within the swing radius
of the Excavator or to otherwise keep a certain distance from the machine. Id. at p. 98.
41. Similarly, Mr. Wade testified that ACD did not provide him with any training or
instructions regarding safety in operation of the Excavator. See Exhibit C, p. 40. In particular, Mr.
Wade received no safety training from ACD addressing ground laborers in the vicinity of the
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Excavator. Id. at p. 168. Mr. Wade maintains that he specifically told the plaintiff not to stand
behind the jersey barrier prior to the incident, because he knew that it could tip over. Id. at p. 160.
42. Mr. Cadugan confirmed that he did not provide plaintiff or Mr. Wade any
instructions regarding where to place the jersey barrier, and he never told the plaintiff not to stand
behind the jersey barrier. See Exhibit F, pp. 39, 50. Mr. Cadugan, who was responsible for
plaintiff’s safety at the time of the incident, admitted that he gave plaintiff no safety training at all
prior to the incident. Id. at p. 77-78. He further admitted that he did not provide plaintiff with any
training regarding signaling to the Excavator operator prior to the incident. Id. at p. 85, 87.
43. Similarly, Brad Minkovitz admitted that ACD provided no written rules or
instructions for ground laborers working in close proximity to the Excavator. See Exhibit D, p. 23.
In fact, Mr. Minkovitz testified that ACD did not provide any training at all with respect to the
hazards associated with laborers working in close proximity to the Excavator or with respect to
pinch point hazards. Id. at p. 206-07.
AMS Safety LLC
44. Third-Party Defendant AMS Safety, LLC (“AMS Safety”) was hired by ACD to
administer and implement certain safety policies and procedures at the work site. See Exhibit E, p.
76. In particular, AMS allegedly conducted safety toolbox talks, administered an orientation
program, and created daily hazard reports. Id. at pp. 81-83, 90.
45. AMS Safety employee Nick Quirke is listed in ACD’s Construction Work Plan as
the designated Environmental, Health, and Safety Professional at the project. See Exhibit Y, p. 1.
46. Neither ACD nor AMS Safety have produced the contract between ACD and AMS
Safety, so the contractual relationship between those parties is unclear.
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47. AMS Safety was served with a Summons and Third-Party Complaint by the Port
Authority/Skanska, and Caterpillar asserted crossclaims against AMS Safety for contribution and
indemnification. See Exhibit N.
48. Caterpillar also served a subpoena duces tecum on AMS Safety, which has also
been served with numerous other documents and pleadings in this case. Id.
49. However, AMS Safety failed to respond or otherwise appear in this lawsuit.
Indeed, despite being the party to this case that was perhaps most integrally involved in the safety
of the worksite, AMS Safety has ignored a summons and subpoena that were served on it and
otherwise failed to defend the allegations against it.
50. In addition, AMS Safety may possess important documents related to safety
policies and procedures at the worksite.
51. Specifically, Appendix B to the Subcontract Agreement between ACD and Skanska
required ACD to perform the following safety-related training, instructions, and procedures:
• Perform new employee orientation;
• Conduct a “Safety Kickoff Meeting;”
• Conduct weekly safety meetings;
• Prepare a work hazard/risk assessment plan for the demolition work that plaintiff was
engaged in at the time of the incident;
• Maintain an OSHA 300 Log;
• Retain a copy of the safety supervisor’s resume demonstrating that he is competent to
perform such a role;
• Create its own Site-Specific Health and Safety Plan;
• Conduct Toolbox Safety Talks; and
• Conduct weekly safety meetings.
See Exhibit G, at Appendix B.
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52. During the course of Discovery, Caterpillar demanded that ACD produce all
documents in its possession that reflect, refer, or relate to the above-listed safety training,
instructions and procedures. See Exhibit H.
53. ACD could not produce a single document to demonstrate that it performed any of
these safety-related measures. Id.
54. Instead, ACD attempted to evade responsibility for safety at the site by asserting
that its agent, AMS Safety, may possess the requested documents. Id.
55. However, AMS Safety has failed to appear or defend any allegations against it, and
as such there is no documentary evidence in this case to substantiate that any of the contractually
required safety meetings, training, and safeguards were ever put into place at this worksite.
The Excavator
56. The subject Excavator was manufactured by Caterpillar on July 5, 2016, and sold
and shipped to Southworth-Milton, Inc. on September 29, 2016. See Exhibit I.
57. Caterpillar’s New Product Introduction Program Manager for Large Excavators
(including the subject 349F Excavator), Dennis O’Rourke, testified that the Excavator was
designed to meet the visibility requirements set forth in the international industry standard known
as “ISO 5006 (2006).” See Exhibit J, p. 90. In order to comply with ISO 5006 (2006) visibility
requirements, the subject Excavator included a rearview camera, right and left side mirrors, and
the ability to rotate the cab 360°. Id. at p. 90.
58. The Excavator cab was also designed to be “open” in order to maximize operator
visibility. More specifically, the Excavator cab is surrounded by clear glass on all sides and the
pillars are very narrow, thereby maximizing visibility. Id.
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59. The Excavator also has a travel alarm that provides audible warnings to alert nearby
workers that the machine is moving forward and in reverse. Id. at p. 103.
60. Mr. O’Rourke testified that the design of the subject 349F Excavator met the
requirements of ISO 5006 (2006). Id. at p. 112. In 2012-2016, when the subject Excavator was
designed, manufactured, and sold, right side cameras were not required by prevailing industry
standards such as ISO 5006 (2006), or any law or governmental regulation in the United States.
Id. at pp. 82, 85, 88. Mr. O’Rourke testified that, while right side cameras were not incorporated
as a standard design feature for the subject 349F Excavator, Caterpillar offered additional camera
kits that were available as dealer-installed optional equipment well before 2016. Id. at p. 132. The
dealer-installed optional camera kits offered by Caterpillar can be installed anywhere on the
machine to enhance visibility in accordance with consumers’ particular needs. Id.
61. The subject 349F excavator has numerous features that enhance operator visibility,
such as the “open” cab design, a rearview camera, left and right-side mirrors, and the ability of the
cab to rotate 360°. Id. at p. 154.
62. The Excavator does not require an additional camera on the right side in order to
be safe for its intended uses.
63. When the Excavator boom is raised (as it was when the subject incident occurred)
the operator has direct visibility to the front right of the machine and full access to the right-side
mirror, which provides visibility along the entire right side of the machine. Id.
64. In addition, the rearview camera has a vertical and horizontal field of vision, which
provides additional visibility to the sides of the machine. Id. at p. 154-55.
Warnings and Instructions Provided With the Excavator
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65. The below warning decal is located on both sides of the back end of the subject
Excavator.
66. Similarly, the below warning decal is located on the Excavator stick.
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67. In addition, the Operation and Maintenance Manual ("OMM") that was shipped
with the Excavator specifically instructs operators to "clear all personnel from the machine and
from the area" before operating the machine. See Exhibit K, p. 39. In addition, the OMM instructs
operators to "perform a walk-around inspection in order to ensure that there are no hazards around
the machine" and to "constantly survey the area around the machine in order to identify potential
hazards as hazards become visible around the machine." Id. at p. 37.
68. The OMM further instructs operators to “[c]lear all obstacles from the machine’s
path” and to “[b]eware of hazards.” Id. at p. 39. Significantly, the OMM specifically instructs
operators to “[k]now the width of your equipment in order to maintain proper clearance when
you operate the equipment near fences or near boundary obstacles.” Id. at p. 28 (emphasis
added).
69. Similarly, the AEM Safety Manual that was shipped with the Excavator directs
operators to “know the location of other personnel,” know the contours of the worksite, and “be
aware of possible hazards that you may encounter." See Exhibit L, p. 11. The AEM Safety Manual
also instructs operators to "not allow anyone to stand within the operating work radius of the
machine and attachment." Id. at p. 25.
70. The AEM Safety Manual further instructs operators to “[k]now the maximum
height and width of the machine,” and “[w]hen moving the machine, watch that enough
clearance is available on both sides.” Id. at p. 29 (emphasis added). Finally, the AEM Safety
Manual specifically instructs operators to “make sure the machine has sufficient clearance from .
. . material on the worksite to prevent contact.” Id. at p. 33.
Caterpillar Model 352F Excavators
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71. ACD and the Port Authority/Skanska’s allegations against Caterpillar are based, in
large part, on a flawed comparison between the subject Caterpillar Model 349F Excavator and a
different Caterpillar Excavator, the 352F, which is designed for use in the EU and is subject to
different laws and standards with respect to visibility requirements, as compared to 349F
Excavators, which are designed for use in the North American market.
72. Beginning in mid-2016, right-side cameras were made standard for all 352F
excavators sold into the EU, due to EU legal requirements that do not apply in North America. See
Exhibit J, pp. 130, 150.
73. Evidence and testimony regarding 352F excavators is irrelevant to the issues in this
case and unduly prejudicial to Caterpillar.
ISO 5006 (2017)
74. The subject Excavator was manufactured on July 5, 2016, and was designed to meet
the visibility standards set forth in ISO 5006 (2006). See Exhibit J, at p. 90.
75. In order to comply with ISO 5006 (2006) visibility standards, the subject Excavator
included a rearview camera, right and left side mirrors, and the ability to rotate the cab 360°. Id.
76. The Excavator cab was also designed to be “open” in order to maximize operator
visibility. More specifically, the Excavator cab is surrounded by clear glass on all sides and the
pillars are very narrow, thereby maximizing visibility. Id.
77. The Excavator also has a travel alarm that provides audible warnings to alert nearby
workers that the machine is moving forward or in reverse. Id. at p. 103.
78. ISO 5006 (2006) was revised in 2017 to include additional visibility requirements.
Id. at pp. 129-30.
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79. A right-side camera was determined to be a mechanism for large excavators to meet
the visibility requirements of the revised ISO visibility standard, ISO 5006 (2017). Id. at p. 130.
80. The subject 349F Excavator, which was manufactured in 2016 for use in the North
American market, was not designed to meet the requirements of ISO 5006 (2017), nor was it
required to do so. Id.
81. Evidence and testimony regarding ISO 5006 (2017) is irrelevant and potentially
confusing and prejudicial to Caterpillar, and it should be excluded at the time of trial.
Alleged Other Similar Incidents
82. ACD’s Seventh Notice to Admit, served on the eve of trial on March 14, 2024,
references three other incidents that allegedly involve Caterpillar Excavators: Sayeed v.
Caterpillar Inc.; Est. of Caponegro v. Caterpillar Inc.; and Metro v. Caterpillar Inc. 1 See Exhibit
V.
83. ACD’s Seventh Notice to Admit provides no factual details regarding any of these
three other incidents and information regarding these matters was not otherwise exchanged during
discovery. Id.
84. Upon information and belief, Caterpillar does not possess knowledge or
information regarding the Metro matter.
1
ACD’s expert witness, Robert Crandall, vaguely references his “knowledge concerning similar cases
against Caterpillar,” but does not proffer any specific information or opinions concerning any other
incidents. See Freeman Aff., Ex. M, ¶ 6. Accordingly, Mr. Crandall should be precluded from offering
evidence or testimony regarding alleged other incidents. See Krimkevitch v Imperiale, 104 A.D.3d 649 (2d
Dep't. 2013).
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85. However, it is known that the Sayeed and Caponegro matters do not involve
Caterpillar 349F Excavators and arise out of fact patterns which are not substantially similar to the
present matter.
86. In particular, the Sayeed matter involved a Caterpillar 320D Excavator that was
manufactured in 2008, or eight years before the subject Caterpillar 349F Excavator was
manufactured.
87. The Caponegro matter involved a Caterpillar 315BL Excavator that was
manufactured in 1998, or 18 years before the subject Caterpillar 349F Excavator was
manufactured.
88. The 320D Model is considered a “medium” excavator and the 315BL Model is
classified as a “small” Excavator, while the subject 349F Excavator is a “large” Excavator.
89. Small and medium Excavators have different configurations and features as
compared to large Excavators, and are often used in different environments.
90. Large Excavators such as the subject 349F Excavator are ideal for large, bulky
earthmoving and heavy lifting.
91. In contrast, small and medium Excavators are smaller and less powerful, and can
be used in more confined areas. Thus, there are significant differences between the Excavators at
issue in Sayeed, Caponegro, and the present matter.
92. In addition to the differences between the machines at issue in Sayeed and
Caponegro, the product defect allegations in those matters were focused on the absence of a
rearview camera.
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93. Unlike the subject Caterpillar 349F Excavator, which came with a rearview camera
as standard equipment, the Excavators at issue in Sayeed and Caponegro had no rearview camera
or any other cameras incorporated into the design of those machines.
94. Indeed, the plaintiffs in Sayeed and Caponegro were injured when they were struck
by the rear of the respective Excavators while the machines were moving in reverse.
95. The Sayeed matter also involved allegations related to alleged malfunctioning of
the backup alarm on the 320C Excavator at the time of the incident.
96. Neither Sayeed nor Caponegro involved product defect allegations related to a
blind spot on the right side of the machine, or the allegation that the machine is defective because
an additional right-side camera was not incorporated as standard equipment, as ACD and the Port
Authority/Skanska allege here.
97. In the present matter, ACD and the Port Authority/Skanska’s entire theory of
liability against Caterpillar is based on the alleged blind spot to the right of the Excavator.
98. The subject 349F Excavator has a rearview camera, and it did not strike or contact
Mr. Andrade.
99. Indeed, Mr. Wade, the machine operator, admits that he could see Mr. Andrade at
the time of the incident. See Exhibit C, p. 114.
100. Specifically, Mr. Andrade was injured when he gave a hand signal to Mr. Wade to
“stop,” and Mr. Wade misinterpreted the hand signal and continued to move the Excavator, which
struck the jersey barrier, causing it to fall over onto Mr. Andrade’s leg. See Exhibit B, p. 64.
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101. It is undisputed that the plaintiff and Mr. Wade failed to comply with the ACD
Construction Work Plan and the Health and Safety Plan by failing to avoid an obvious pinch point
and not having proper hand signal training and an established communication protocol.
102. In stark contrast, the accidents in Sayeed and Caponegro allegedly occurred when
the operators of the Excavators at issue did not see the plaintiffs behind the machines and backed
over or into them. In Sayeed, the plaintiff also alleged that the backup alarm on the 320C Excavator
was not working at the time of the incident.
103. Thus, the facts and circumstances in Sayeed and Caponegro are very different from
the present matter, and it would be unfairly prejudicial, confusing, and potentially misleading to
the jury to allow evidence and testimony related to those matters.
The Proffered Testimony of Robert Crandall
104. ACD’s liability expert in this matter is Robert Crandall. See Exhibit M.
105. Mr. Crandall is a purported “Automotive and Commercial Vehicle Specialist,” with
experience “encompassing all aspects of compliance with federal, state, and local codes,
requirements, laws, and recommendations of oversight organizations.” Id. at p. 5.
106. Mr. Crandall is not an engineer and has no training, education, or experience in
designing heavy equipment. Id.
107. Rather, he worked for the New York City Department of Sanitation for 26 years as
an auto and truck mechanic and Supervisor of Field Operations. Id. at p. 5-6.
108. It is not clear whether Mr. Crandall graduated from high school, and his highest
level of education appears to be an online correspondence course in automotive and diesel repairs
offered by International Correspondence Schools. Id. at p. 7.
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109. He has no training, education, or experience whatsoever in designing heavy
equipment or any other aspect of mechanical engineering. Id. He similarly has no education,
training, or experience in the fields of human factors or accident reconstruction. Id.
110. Nevertheless, Mr. Crandall opines that the subject Excavator is “defective and not
reasonably safe as designed, sold, and leased because of the hazardous blind spot to the right of
the excavator.” Id. at p. 13.
111. Mr. Crandall opines that a right-side camera “is necessary in any application of the
subject excavator and would not impede the productivity or use of the excavator no matter how it
is used.” Id. at pp. 14-28.
112. Mr. Crandall also offers human factors opinions and accident reconstruction
analysis, including the following: “with the [right-side] mirror alone, Mr. Wade could not
accurately determine how far away the excavator was from the Jersey barrier.” Id. at p. 30.
113. He further speculates that, “[h]ad the subject excavator be
Preview
FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS __________________________________________ RONY ANDRADE and ALBA VANEGAS, ) Index No. 512446/18 ) Plaintiffs, ) ) v. ) ) ) ) THE PORT AUTHORITY OF NEW YORK AND ) NEW JERSEY, SKANSKA KOCH, INC., KIEWIT) INFRASTRUCTURE CO., and SKANSKA ) KOCH/KIEWIT Joint Venture, ) ) Defendants. ) __________________________________________) ) THE PORT AUTHORITY OF NEW YORK AND ) NEW JERSEY, SKANSKA KOCH, INC., KIEWIT) INFRASTRUCTURE CO., and SKANSKA ) KOCH/KIEWIT Joint Venture, ) ) Third-Party Plaintiffs, ) ) v. ) ) ATLANTIC COAST DISMANTLING, LLC, ) ENVIRONMENTAL AND INFRASTRUCTURE ) GROUP, LLC, ATLANTIC COAST ) DISMANTLING ENVIRONMENTAL AND ) INFRASTRUCTURE GROUP JV, and AMS ) SAFETY LLC, ) ) Third-Party Defendants. ) __________________________________________) ) ATLANTIC COAST DISMANTLING, LLC, ) ENVIRONMENTAL AND INFRASTRUCTURE ) GROUP, LLC, and ATLANTIC COAST ) DISMANTLING ENVIRONMENTAL AND ) INFRASTRUCTURE GROUP JV, ) ) 1 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 Second Third-Party Plaintiffs, ) ) v. ) ) CATERPILLAR INC., ) ) Second Third-Party Defendant. ) __________________________________________) THE PORT AUTHORITY OF NEW YORK AND ) NEW JERSEY, SKANSKA KOCH, INC., KIEWIT ) INFRASTRUCTURE CO., and SKANSKA KOCH ) KIEWIT, Joint Venture, ) ) Third Third-Party Plaintiffs, ) ) v. ) ) CATERPILLAR INC., ) ) Third Third-Party Defendant. ) __________________________________________) ATTORNEY AFFIRMATION IN SUPPORT OF CATERPILLAR INC.’S MOTIONS IN LIMINE Timothy R. Freeman, an attorney duly admitted to practice law before the Courts of the State of New York, affirms, under the penalties of perjury pursuant to CPLR § 2106, that the following statements are true, except for those made upon information and belief: 1. I am a Partner in the law firm of Tanenbaum Keale LLP, attorneys for Third-Party Defendant Caterpillar Inc. (“Caterpillar”). I am fully familiar with all pertinent facts and circumstances. 2. This Affirmation is submitted in support of Caterpillar’s Motions In Limine. 3. The following exhibits are attached: • Exhibit “A” – A true copy of Plaintiffs’ Verified Complaint; 2 2 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 • Exhibit “B” – A true copy of the transcript of the deposition of plaintiff Rony Andrade (cited portions); • Exhibit “C” – A true copy of the transcript of the deposition of John Wade (cited portions); • Exhibit “D” – A true copy of the transcript of the deposition of Brad Minkovitz (cited portions); • Exhibit “E” – A true copy of the transcript of the deposition of Michael Cadugan (cited portions); • Exhibit “F” – A true copy of the transcript of the deposition of Leonardo Iacoviello (cited portions); • Exhibit “G” – A true copy of the Subcontract Agreement between ACD and Skanska (cited portions); • Exhibit “H” – A true copy of ACD’s Response to Caterpillar’s Second Notice for Discovery and Inspection; • Exhibit “I” - A true copy of the Caterpillar SIMSi Sales and Service Detail; • Exhibit “J” – A true copy of the transcript of the deposition of Dennis O’Rourke (cited portions); • Exhibit “K” – A true copy of the Operation and Maintenance Manual that was shipped with the subject Excavator (cited portions); • Exhibit “L” – A true copy of the AEM Safety Manual that was shipped with the subject Excavator (cited portions); • Exhibit “M” – A true copy of ACD’s CPLR 3101(d) Expert Disclosure for Robert Crandall; • Exhibit “N” – True copies of various Affidavits of Service on AMS Safety, LLC, related to pleadings and subpoenas; • Exhibit “O” – A true copy of the Affidavit of Frank Manfredi; • Exhibit “P” – A true copy of the Decision and Order of Justice Lillian Wan, J.S.C., dated December 20, 2021, adjudicating the parties’ motions for summary judgment; • Exhibit “Q” – A true copy of the OSHA Investigation Report; • Exhibit “R” – A true copy of Caterpillar’s Final Report, entitled “Construction Vehicle and Equipment Blind Area Diagrams,” dated June 2, 2003 • Exhibit “S” – A true copy of Caterpillar’s Contract Modification - Final Report, entitled “Construction Vehicle and Equipment Blind Area Diagrams,” dated June 29, 2004. • Exhibit “T” – A true copy of the Center for Disease Controls Contract with Caterpillar; • Exhibit “U” – A true copy of the Affidavit of Robert Hefner; • Exhibit “V” – A true copy of ACD’s Seventh Notice to Admit; • Exhibit “W” – A true copy of Plaintiffs’ Third Supplemental Bill of Particulars; • Exhibit “X” – A true copy of Plaintiffs’ Expert Disclosure for Stacy Booth, B.A; • Exhibit “Y” – A true copy of ACD’s Construction Work Plan; • Exhibit “Z” – A true copy of the Expert Report of Craig Steigerwalt. 3 3 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 The Incident 4. This matter arises from an incident that occurred on November 28, 2017, on the Bayonne Bridge in Staten Island, New York. See Exhibit A, p. 23. At that time, plaintiff Rony Andrade was employed as a laborer by third-party defendant/second third-party plaintiff Atlantic Coast Dismantling, LLC, Environmental and Infrastructure Group, LLC, and Atlantic Coast Dismantling Environmental and Infrastructure Group JV (collectively, “ACD”). Id. 5. At approximately 1:30 PM, ACD employee John Wade was operating a Caterpillar Model 349F Hydraulic Excavator, Serial Number BZ200867 (the “Excavator”) in reverse when the right Excavator track struck “a concrete jersey barrier, dislodging the barrier and causing it to fall down 3-4 feet striking Plaintiff and causing him to sustain” injuries to his left leg. Id. 6. There is no allegation that the Excavator struck the plaintiff. Rather, plaintiff’s allegation is that the Excavator struck a nearby concrete jersey barrier, which toppled over and pinched plaintiff’s left leg against the parapet siding of the bridge. 7. The below photographs of the subject Excavator were taken at the scene of the incident. 4 4 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 8. At the time of the incident, plaintiff positioned himself in a narrow space behind the concrete jersey barrier and the metal parapet siding of the bridge for the purpose of acting as a signal man for the machine operator, Mr. Wade. See Exhibit B, p. 117. 5 5 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 9. The below photograph of the incident scene, taken by a surveillance camera shortly before the incident occurred, shows the plaintiff, positioned between the concrete jersey barrier and the siding of the bridge, giving hand signals to Mr. Wade, who is in the cab of the Excavator, using a scissor attachment to dismantle a portion of the bridge. 10. The below photograph, taken by the same surveillance camera immediately after the incident, shows the concrete barrier toppled over onto the siding of the bridge. 6 6 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 11. As demonstrated in the above photographs, plaintiff was in “clear view” of the machine operator, Mr. Wade, at the time of the incident, and Mr. Wade testified that he knew where the plaintiff was positioned at the time of the incident. See Exhibit B, p. 120, and Exhibit C, p. 114. 12. Plaintiff testified that, at the time of the incident, he and Mr. Wade were able to see each other clearly. See Exhibit B, p. 101. 13. Mr. Wade could see a portion of the jersey barrier from his position in the Excavator cab, and he could see that the jersey barrier was positioned approximately 2 feet from the right Excavator track. See Exhibit C, p. 129-30. 14. He similarly knew where the plaintiff was positioned in relation to the jersey barrier. Id. at p. 114. 7 7 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 15. Mr. Wade could see the first half of the jersey barrier from his position in the Excavator cab. Id. 16. Further, Mr. Wade looked in the right-side mirror before moving in reverse. Id. at p. 133. 17. The right-side mirror provided visibility to the right Excavator track, a portion of the jersey barrier and the right excavator track. See Exhibit C, p. 133. Thus, Mr. Wade knew where the jersey barrier was and where the plaintiff was at the time of the incident, and was well aware of the hazard at issue in this matter. Id., p. 82, 88. 18. Immediately prior to the incident, Mr. Wade had finished dismantling a section of the bridge and plaintiff signaled for him to stop. See Exhibit B, p. 64. Plaintiff gave visual hand signals to Mr. Wade at the time of the incident, demonstrating that visibility of the plaintiff was not compromised. Id. at p. 61. The space between the jersey barrier and the parapet siding of the bridge, where plaintiff was standing, was approximately 1.5 feet in length. Id. at p. 117. 19. After plaintiff gave Mr. Wade a signal to stop, Mr. Wade moved the Excavator in reverse, causing its right track to collide with the jersey barrier, knocking it over and pinching plaintiff’s left leg against the parapet siding of the bridge. Id. 20. The below photograph, taken on the day of the incident, shows the Excavator on the Bayonne Bridge, with the concrete jersey barrier tipped over and resting on the parapet siding of the bridge. 8 8 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 21. Plaintiff testified that he had been standing in the same spot for approximately 1.5 hours prior to the incident and had been working at the site with Mr. Wade for several months. Id. at p. 94, 122. 22. Mr. Wade testified that he knew the plaintiff was positioned in between the jersey barrier and the parapet siding of the bridge at the time of the incident, but did not tell the plaintiff to remove himself from that dangerous position. See Exhibit C, p. 123. Mr. Wade also knew that the right Excavator track was approximately two feet away from the jersey barrier. Id. at p. 124. Mr. Wade could see the first ten feet of the jersey barrier from his vantage point in the Excavator cab. Id. at 129. Evaluation of the Incident 23. Mr. Wade testified that the plaintiff should not have been standing behind the jersey barrier because of the obvious danger associated with it tipping over. See Exhibit C, p. 151. More specifically, Mr. Wade knew that jersey barriers are prone to tipping over, he had observed jersey 9 9 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 barriers tipping over on multiple occasions prior to the incident, and he knew that the subject jersey barrier was not pinned to the ground. Id. Mr. Wade also knew that it was “standard operating procedure” to make sure that the surrounding area is completely clear before moving the Excavator in reverse. Id. at p. 163. 24. The Project Manager for the Bayonne Bridge Reconstruction Project, Brad Minkovitz, testified that he would not have allowed plaintiff to stand between the jersey barrier and the parapet siding of the bridge because it is a “bad spot.” See Exhibit D, p. 97-98. If Mr. Minkovitz was aware that plaintiff was standing in that position, he would have immediately stopped the work and directed plaintiff to move to a safe location. Id. 25. Similarly, the Superintendent for the Bayonne Bridge Reconstruction Project, Michael Cadugan, testified that he never saw plaintiff standing in between the jersey barrier and the parapet siding prior to the incident, but if he had, he would have told plaintiff to “get out of there” because “it is an obvious pinch point.” See Exhibit E, p. 95-96. 26. Leonardo Iacoviello, the Resident Engineer employed by the Port Authority of New York and New Jersey, testified that the plaintiff was in a “position that was – I think we all felt maybe wasn’t the best location for him to be in.” See Exhibit F, p. 177. According to Mr. Iacoviello, the plaintiff was in a “tight spot,” and the jersey barrier “should have been pulled to the side and pushed back.” Id. at 189. ACD Violated its Own Construction Work Plan 27. Pursuant to its contract with Skanska, ACD created a Construction Work Plan for the NY Approach Deck Demolition on the Bayonne Bridge. See Exhibit Y. 10 10 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 28. In addition to identifying the scope of work, ACD’s Construction Work Plan outlined potential hazards during operations, along with mitigation controls and implementation procedures to reduce the probability of those hazards. Id. 29. Among the potential hazards that ACD identified was “Struck By/Caught Between” pinch points. Id. at p. 16. Pursuant to its Construction Work Plan, ACD was required to “identify pinch points” and “inspect the work area for possible struck by/caught between hazards” on a daily basis. Id. 30. ACD’s Construction Work Plan also clearly instructs workers to “not stand or walk behind or alongside moving equipment.” Id. 31. The Construction Work Plan further requires that the “[t]ravel path [of the Excavator] shall be evaluated prior to moving” the machine. Id. at p. 33. 32. More importantly, the Construction Work Plan requires that “[s]ignal people must be properly trained in the use of hand signals.” Id. 33. ACD failed to comply with these important safety requirements that were set forth in its own Construction Work Plan. 34. In particular, Messrs. Wade and Andrade failed to identify a pinch point between the jersey barrier and the parapet siding of the bridge that was characterized by Mr. Cadugan as “an obvious pinch point.” See Exhibit E, p. 95-96. 35. Further, Mr. Andrade was standing alongside the moving Excavator at the time of the incident, and the travel path of the Excavator was not evaluated by either Mr. Andrade or Mr. Wade before the machine began to move in reverse. 11 11 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 36. In addition, Messrs. Wade and Andrade testified that ACD did not provide any training or instructions with respect to hand signals or communication protocols. See Exhibit B, p. 92, 112. 37. Mr. Cadugan confirmed that ACD provided no training or instructions regarding hand signals or communication protocols. See Exhibit E, p. 85. 38. Similarly, Mr. Wade testified that he and Mr. Andrade did not have an “understanding of what hand signals would be used and how they would be interpreted.” See Exhibit C, p. 29. Significantly, Mr. Wade testified that he did not always understand the hand signals that Mr. Andrade gave to him. Id. at p. 30. 39. Ultimately, ACD’s failure to ensure that its employees had clear and well- understood hand signals and communication protocols was a substantial cause of the incident. Specifically, Mr. Andrade testified that the incident occurred when he signaled for Mr. Wade to “stop,” and Mr. Wade misinterpreted his signal and continued to move the Excavator and it struck the jersey barrier. See Exhibit B, p. 64. Training and Instructions Provided to the Plaintiff 40. Plaintiff maintains that he was instructed by ACD to always be visible to the operator of the Excavator, but was never told not to stand between the jersey barrier and the parapet siding of the bridge. See Exhibit B, p. 60. He was never told not to stand within the swing radius of the Excavator or to otherwise keep a certain distance from the machine. Id. at p. 98. 41. Similarly, Mr. Wade testified that ACD did not provide him with any training or instructions regarding safety in operation of the Excavator. See Exhibit C, p. 40. In particular, Mr. Wade received no safety training from ACD addressing ground laborers in the vicinity of the 12 12 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 Excavator. Id. at p. 168. Mr. Wade maintains that he specifically told the plaintiff not to stand behind the jersey barrier prior to the incident, because he knew that it could tip over. Id. at p. 160. 42. Mr. Cadugan confirmed that he did not provide plaintiff or Mr. Wade any instructions regarding where to place the jersey barrier, and he never told the plaintiff not to stand behind the jersey barrier. See Exhibit F, pp. 39, 50. Mr. Cadugan, who was responsible for plaintiff’s safety at the time of the incident, admitted that he gave plaintiff no safety training at all prior to the incident. Id. at p. 77-78. He further admitted that he did not provide plaintiff with any training regarding signaling to the Excavator operator prior to the incident. Id. at p. 85, 87. 43. Similarly, Brad Minkovitz admitted that ACD provided no written rules or instructions for ground laborers working in close proximity to the Excavator. See Exhibit D, p. 23. In fact, Mr. Minkovitz testified that ACD did not provide any training at all with respect to the hazards associated with laborers working in close proximity to the Excavator or with respect to pinch point hazards. Id. at p. 206-07. AMS Safety LLC 44. Third-Party Defendant AMS Safety, LLC (“AMS Safety”) was hired by ACD to administer and implement certain safety policies and procedures at the work site. See Exhibit E, p. 76. In particular, AMS allegedly conducted safety toolbox talks, administered an orientation program, and created daily hazard reports. Id. at pp. 81-83, 90. 45. AMS Safety employee Nick Quirke is listed in ACD’s Construction Work Plan as the designated Environmental, Health, and Safety Professional at the project. See Exhibit Y, p. 1. 46. Neither ACD nor AMS Safety have produced the contract between ACD and AMS Safety, so the contractual relationship between those parties is unclear. 13 13 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 47. AMS Safety was served with a Summons and Third-Party Complaint by the Port Authority/Skanska, and Caterpillar asserted crossclaims against AMS Safety for contribution and indemnification. See Exhibit N. 48. Caterpillar also served a subpoena duces tecum on AMS Safety, which has also been served with numerous other documents and pleadings in this case. Id. 49. However, AMS Safety failed to respond or otherwise appear in this lawsuit. Indeed, despite being the party to this case that was perhaps most integrally involved in the safety of the worksite, AMS Safety has ignored a summons and subpoena that were served on it and otherwise failed to defend the allegations against it. 50. In addition, AMS Safety may possess important documents related to safety policies and procedures at the worksite. 51. Specifically, Appendix B to the Subcontract Agreement between ACD and Skanska required ACD to perform the following safety-related training, instructions, and procedures: • Perform new employee orientation; • Conduct a “Safety Kickoff Meeting;” • Conduct weekly safety meetings; • Prepare a work hazard/risk assessment plan for the demolition work that plaintiff was engaged in at the time of the incident; • Maintain an OSHA 300 Log; • Retain a copy of the safety supervisor’s resume demonstrating that he is competent to perform such a role; • Create its own Site-Specific Health and Safety Plan; • Conduct Toolbox Safety Talks; and • Conduct weekly safety meetings. See Exhibit G, at Appendix B. 14 14 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 52. During the course of Discovery, Caterpillar demanded that ACD produce all documents in its possession that reflect, refer, or relate to the above-listed safety training, instructions and procedures. See Exhibit H. 53. ACD could not produce a single document to demonstrate that it performed any of these safety-related measures. Id. 54. Instead, ACD attempted to evade responsibility for safety at the site by asserting that its agent, AMS Safety, may possess the requested documents. Id. 55. However, AMS Safety has failed to appear or defend any allegations against it, and as such there is no documentary evidence in this case to substantiate that any of the contractually required safety meetings, training, and safeguards were ever put into place at this worksite. The Excavator 56. The subject Excavator was manufactured by Caterpillar on July 5, 2016, and sold and shipped to Southworth-Milton, Inc. on September 29, 2016. See Exhibit I. 57. Caterpillar’s New Product Introduction Program Manager for Large Excavators (including the subject 349F Excavator), Dennis O’Rourke, testified that the Excavator was designed to meet the visibility requirements set forth in the international industry standard known as “ISO 5006 (2006).” See Exhibit J, p. 90. In order to comply with ISO 5006 (2006) visibility requirements, the subject Excavator included a rearview camera, right and left side mirrors, and the ability to rotate the cab 360°. Id. at p. 90. 58. The Excavator cab was also designed to be “open” in order to maximize operator visibility. More specifically, the Excavator cab is surrounded by clear glass on all sides and the pillars are very narrow, thereby maximizing visibility. Id. 15 15 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 59. The Excavator also has a travel alarm that provides audible warnings to alert nearby workers that the machine is moving forward and in reverse. Id. at p. 103. 60. Mr. O’Rourke testified that the design of the subject 349F Excavator met the requirements of ISO 5006 (2006). Id. at p. 112. In 2012-2016, when the subject Excavator was designed, manufactured, and sold, right side cameras were not required by prevailing industry standards such as ISO 5006 (2006), or any law or governmental regulation in the United States. Id. at pp. 82, 85, 88. Mr. O’Rourke testified that, while right side cameras were not incorporated as a standard design feature for the subject 349F Excavator, Caterpillar offered additional camera kits that were available as dealer-installed optional equipment well before 2016. Id. at p. 132. The dealer-installed optional camera kits offered by Caterpillar can be installed anywhere on the machine to enhance visibility in accordance with consumers’ particular needs. Id. 61. The subject 349F excavator has numerous features that enhance operator visibility, such as the “open” cab design, a rearview camera, left and right-side mirrors, and the ability of the cab to rotate 360°. Id. at p. 154. 62. The Excavator does not require an additional camera on the right side in order to be safe for its intended uses. 63. When the Excavator boom is raised (as it was when the subject incident occurred) the operator has direct visibility to the front right of the machine and full access to the right-side mirror, which provides visibility along the entire right side of the machine. Id. 64. In addition, the rearview camera has a vertical and horizontal field of vision, which provides additional visibility to the sides of the machine. Id. at p. 154-55. Warnings and Instructions Provided With the Excavator 16 16 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 65. The below warning decal is located on both sides of the back end of the subject Excavator. 66. Similarly, the below warning decal is located on the Excavator stick. 17 17 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 67. In addition, the Operation and Maintenance Manual ("OMM") that was shipped with the Excavator specifically instructs operators to "clear all personnel from the machine and from the area" before operating the machine. See Exhibit K, p. 39. In addition, the OMM instructs operators to "perform a walk-around inspection in order to ensure that there are no hazards around the machine" and to "constantly survey the area around the machine in order to identify potential hazards as hazards become visible around the machine." Id. at p. 37. 68. The OMM further instructs operators to “[c]lear all obstacles from the machine’s path” and to “[b]eware of hazards.” Id. at p. 39. Significantly, the OMM specifically instructs operators to “[k]now the width of your equipment in order to maintain proper clearance when you operate the equipment near fences or near boundary obstacles.” Id. at p. 28 (emphasis added). 69. Similarly, the AEM Safety Manual that was shipped with the Excavator directs operators to “know the location of other personnel,” know the contours of the worksite, and “be aware of possible hazards that you may encounter." See Exhibit L, p. 11. The AEM Safety Manual also instructs operators to "not allow anyone to stand within the operating work radius of the machine and attachment." Id. at p. 25. 70. The AEM Safety Manual further instructs operators to “[k]now the maximum height and width of the machine,” and “[w]hen moving the machine, watch that enough clearance is available on both sides.” Id. at p. 29 (emphasis added). Finally, the AEM Safety Manual specifically instructs operators to “make sure the machine has sufficient clearance from . . . material on the worksite to prevent contact.” Id. at p. 33. Caterpillar Model 352F Excavators 18 18 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 71. ACD and the Port Authority/Skanska’s allegations against Caterpillar are based, in large part, on a flawed comparison between the subject Caterpillar Model 349F Excavator and a different Caterpillar Excavator, the 352F, which is designed for use in the EU and is subject to different laws and standards with respect to visibility requirements, as compared to 349F Excavators, which are designed for use in the North American market. 72. Beginning in mid-2016, right-side cameras were made standard for all 352F excavators sold into the EU, due to EU legal requirements that do not apply in North America. See Exhibit J, pp. 130, 150. 73. Evidence and testimony regarding 352F excavators is irrelevant to the issues in this case and unduly prejudicial to Caterpillar. ISO 5006 (2017) 74. The subject Excavator was manufactured on July 5, 2016, and was designed to meet the visibility standards set forth in ISO 5006 (2006). See Exhibit J, at p. 90. 75. In order to comply with ISO 5006 (2006) visibility standards, the subject Excavator included a rearview camera, right and left side mirrors, and the ability to rotate the cab 360°. Id. 76. The Excavator cab was also designed to be “open” in order to maximize operator visibility. More specifically, the Excavator cab is surrounded by clear glass on all sides and the pillars are very narrow, thereby maximizing visibility. Id. 77. The Excavator also has a travel alarm that provides audible warnings to alert nearby workers that the machine is moving forward or in reverse. Id. at p. 103. 78. ISO 5006 (2006) was revised in 2017 to include additional visibility requirements. Id. at pp. 129-30. 19 19 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 79. A right-side camera was determined to be a mechanism for large excavators to meet the visibility requirements of the revised ISO visibility standard, ISO 5006 (2017). Id. at p. 130. 80. The subject 349F Excavator, which was manufactured in 2016 for use in the North American market, was not designed to meet the requirements of ISO 5006 (2017), nor was it required to do so. Id. 81. Evidence and testimony regarding ISO 5006 (2017) is irrelevant and potentially confusing and prejudicial to Caterpillar, and it should be excluded at the time of trial. Alleged Other Similar Incidents 82. ACD’s Seventh Notice to Admit, served on the eve of trial on March 14, 2024, references three other incidents that allegedly involve Caterpillar Excavators: Sayeed v. Caterpillar Inc.; Est. of Caponegro v. Caterpillar Inc.; and Metro v. Caterpillar Inc. 1 See Exhibit V. 83. ACD’s Seventh Notice to Admit provides no factual details regarding any of these three other incidents and information regarding these matters was not otherwise exchanged during discovery. Id. 84. Upon information and belief, Caterpillar does not possess knowledge or information regarding the Metro matter. 1 ACD’s expert witness, Robert Crandall, vaguely references his “knowledge concerning similar cases against Caterpillar,” but does not proffer any specific information or opinions concerning any other incidents. See Freeman Aff., Ex. M, ¶ 6. Accordingly, Mr. Crandall should be precluded from offering evidence or testimony regarding alleged other incidents. See Krimkevitch v Imperiale, 104 A.D.3d 649 (2d Dep't. 2013). 20 20 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 85. However, it is known that the Sayeed and Caponegro matters do not involve Caterpillar 349F Excavators and arise out of fact patterns which are not substantially similar to the present matter. 86. In particular, the Sayeed matter involved a Caterpillar 320D Excavator that was manufactured in 2008, or eight years before the subject Caterpillar 349F Excavator was manufactured. 87. The Caponegro matter involved a Caterpillar 315BL Excavator that was manufactured in 1998, or 18 years before the subject Caterpillar 349F Excavator was manufactured. 88. The 320D Model is considered a “medium” excavator and the 315BL Model is classified as a “small” Excavator, while the subject 349F Excavator is a “large” Excavator. 89. Small and medium Excavators have different configurations and features as compared to large Excavators, and are often used in different environments. 90. Large Excavators such as the subject 349F Excavator are ideal for large, bulky earthmoving and heavy lifting. 91. In contrast, small and medium Excavators are smaller and less powerful, and can be used in more confined areas. Thus, there are significant differences between the Excavators at issue in Sayeed, Caponegro, and the present matter. 92. In addition to the differences between the machines at issue in Sayeed and Caponegro, the product defect allegations in those matters were focused on the absence of a rearview camera. 21 21 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 93. Unlike the subject Caterpillar 349F Excavator, which came with a rearview camera as standard equipment, the Excavators at issue in Sayeed and Caponegro had no rearview camera or any other cameras incorporated into the design of those machines. 94. Indeed, the plaintiffs in Sayeed and Caponegro were injured when they were struck by the rear of the respective Excavators while the machines were moving in reverse. 95. The Sayeed matter also involved allegations related to alleged malfunctioning of the backup alarm on the 320C Excavator at the time of the incident. 96. Neither Sayeed nor Caponegro involved product defect allegations related to a blind spot on the right side of the machine, or the allegation that the machine is defective because an additional right-side camera was not incorporated as standard equipment, as ACD and the Port Authority/Skanska allege here. 97. In the present matter, ACD and the Port Authority/Skanska’s entire theory of liability against Caterpillar is based on the alleged blind spot to the right of the Excavator. 98. The subject 349F Excavator has a rearview camera, and it did not strike or contact Mr. Andrade. 99. Indeed, Mr. Wade, the machine operator, admits that he could see Mr. Andrade at the time of the incident. See Exhibit C, p. 114. 100. Specifically, Mr. Andrade was injured when he gave a hand signal to Mr. Wade to “stop,” and Mr. Wade misinterpreted the hand signal and continued to move the Excavator, which struck the jersey barrier, causing it to fall over onto Mr. Andrade’s leg. See Exhibit B, p. 64. 22 22 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 101. It is undisputed that the plaintiff and Mr. Wade failed to comply with the ACD Construction Work Plan and the Health and Safety Plan by failing to avoid an obvious pinch point and not having proper hand signal training and an established communication protocol. 102. In stark contrast, the accidents in Sayeed and Caponegro allegedly occurred when the operators of the Excavators at issue did not see the plaintiffs behind the machines and backed over or into them. In Sayeed, the plaintiff also alleged that the backup alarm on the 320C Excavator was not working at the time of the incident. 103. Thus, the facts and circumstances in Sayeed and Caponegro are very different from the present matter, and it would be unfairly prejudicial, confusing, and potentially misleading to the jury to allow evidence and testimony related to those matters. The Proffered Testimony of Robert Crandall 104. ACD’s liability expert in this matter is Robert Crandall. See Exhibit M. 105. Mr. Crandall is a purported “Automotive and Commercial Vehicle Specialist,” with experience “encompassing all aspects of compliance with federal, state, and local codes, requirements, laws, and recommendations of oversight organizations.” Id. at p. 5. 106. Mr. Crandall is not an engineer and has no training, education, or experience in designing heavy equipment. Id. 107. Rather, he worked for the New York City Department of Sanitation for 26 years as an auto and truck mechanic and Supervisor of Field Operations. Id. at p. 5-6. 108. It is not clear whether Mr. Crandall graduated from high school, and his highest level of education appears to be an online correspondence course in automotive and diesel repairs offered by International Correspondence Schools. Id. at p. 7. 23 23 of 30 FILED: KINGS COUNTY CLERK 04/18/2024 02:52 PM INDEX NO. 512446/2018 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 04/18/2024 109. He has no training, education, or experience whatsoever in designing heavy equipment or any other aspect of mechanical engineering. Id. He similarly has no education, training, or experience in the fields of human factors or accident reconstruction. Id. 110. Nevertheless, Mr. Crandall opines that the subject Excavator is “defective and not reasonably safe as designed, sold, and leased because of the hazardous blind spot to the right of the excavator.” Id. at p. 13. 111. Mr. Crandall opines that a right-side camera “is necessary in any application of the subject excavator and would not impede the productivity or use of the excavator no matter how it is used.” Id. at pp. 14-28. 112. Mr. Crandall also offers human factors opinions and accident reconstruction analysis, including the following: “with the [right-side] mirror alone, Mr. Wade could not accurately determine how far away the excavator was from the Jersey barrier.” Id. at p. 30. 113. He further speculates that, “[h]ad the subject excavator be