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COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE, SS. SUPERIOR COURT
DEPARTMENT OF THE TRIAL COURT
CIVIL ACTION NO, 1680CV00167
DAVID A. WOODS,
Plaintiff
Vv.
AQUADRO & CERRUITI, INC.,
Defendant
And
HAMPSHIRE SUPERIOR COURT
DANIEL O’CONNELL’S SONS, INC.,
Defendant/Third-Party Plaintiff
APR17 2018
v.
HARRY JEKANOWSKI, JR.
MANAFORT PRECISION, LLC and CLERK/MAGISTRATE
T&M EQUIPMENT CORPORATION
Third-Party Defendants
THE THIRD-PARTY DEFENDANT, T&M EQUIPMENT CORPORATION’S
MEMORANDUM OF LAW IN SUPPORT OF ITS OPPOSITION TO
THE PLAINTIFF, EY
SEE DAVID A. WS
WOODS’ MOTION
MU TION FOR
SOR LEAVE
LEAVE TO
TO
FILE AN AMENDED COMPLAINT
The Third-Party Defendant, T&M Equipment Corporation (“T&M”) hereby
submits this Memorandum of Law in support of its Opposition to the Plaintiff, David
A. Woods’ (the “Plaintiff”} Motion for Leave to File an Amended Complaint.
L FACTUAL BACKGROUND
The Plaintiff, David A. Woods (the “Plaintiff”) filed a Complaint against the
Defendants, Aquadro & Cerruit, Inc. (“A&C”) and Daniel O’Connell’s Sons, Inc. (“DOC”)
The Plaintiff's Complaint alleges that on October 29, 2015 at approximately 1:30 p.m.,
he was working as a Lead Concrete Foreman for his employer Manafort Precision, LLC
at a jobsite known as the Union Station project located in Springfield, Massachusetts
when a piece of unsecured plywood that was covering exposed rebar was blown by a
strong gust of wind, striking the Plaintiff, which resulted in serious personal injuries
to the Plaintiff (the “incident”). The Plaintiff further alleges that A&C and DOC hada
duty to make the Union Station project site reasonably safe and free from all
foreseeable hazards and that A&C and DOC breached that duty, resulting in the
incident and the Plaintiff's subsequent injuries.
The Plaintiff filed his Complaint on or about October 6, 2016. On or about
November 16, 2016, the Defendant, DOC filed its Answer to the Plaintiffs Complaint.
DOC also made Cross-Claims against A&C for Indemnification, Breach of Contract
and Contribution. On or about November 21, 2016, the Defendant DOC filed a Third-
Party Complaint against Manafort Precision, LLC alleging claims of Indemnification
and Breach of Contract. On December 5, 2017, the Defendant filed another Third-
Party Complaint against T&M alleging claims of Indemnification, Breach of Contract,
and Contribution. On March 20, 2016, approximately 18 months after the Plaintiff
filed his original Complaint, the Plaintiff has moved for leave to amend his Complaint
to add T&M as a direct defendant.
Plaintiffs counsel has taken DOC’s Rule 30(b)(6) deposition, A&C’s Rule 30(b)(6)
‘
deposition. Plaintiff's counsel has also taken the deposition of Richard Jackson, a
DOC employee and fact witness in this matter. DOC’s counsel has taken the
deposition of Benjamin Drouin, the Plaintiffs co-worker at Manafort Precision and a
fact witness in this matter. The Plaintiff, A&C, and DOC exchanged and responded to
written discovery long before the Plaintiff filed this instant motion. T&M did not
participate in any of this discovery.
Hl. STANDARD
When a plaintiff moves to amend his complaint to allege direct claims against a
third-party defendant pursuant to Mass. R. Civ. P Rule 14{(a), it is “akin to claims in
an amended pleading to add a party defendant” pursuant to Mass. R. Civ. P. 15
Somerville v. Toshoku Am., 1996 Mass. Super. LEXIS 545, *19 (1996). Mass. R. Civ.
P. 15 provides that a pleading may be amended with leave of court and leave shall be
freely given when justice so requires. The decision is discretionary with the judge, and
leave should be granted “unless some good reason appears for denying it.” Castellucci
v. United States Fid. & Guar. Co., 372 Mass. 288, 289 (1977). The liberal amendment
policy of Mass. R. Civ. P. 15 is not unfettered.
“The decision whether to allow a motion to amend a pleading is a discretionary
decision and depends upon a judge’s weighing of several factors.” Barbosa v. Hopper
Fe eds, Inc., 404 Mass. 610, 621 (1989). Those factors include “undue delay, bad faith
or dilatory motive on the party of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of the amendment, etc.” Ramirez v. Graham, 64
Mass. App. Ct. 573, 579-80 (2005).
Il. ARGUMENT
A. The Plaintiff's Motion for Leave to Amend his Complaint should be denied
because T&M will be prejudiced by the Plaintiff’s inexcusable delay.
T&M will be prejudiced by the Plaintiff's inexcusable delay and neglect in failing
to seek to amend its Complaint to include claims against T&M at this late stage. In
considering whether to allow a party to amend a pleading, courts consider how long
the moving party has delayed in seeking to amend their pleading. Walsh v. Chestnut
Hill Bank & Trust Co., 414 Mass. 283 (1993) (plaintiffs motion to amend complaint
denied where she moved for leave to amend more than 18 months after she had filed
3
her original complaint, and had been aware of the facts of her case which might
support her amendments for quite some time). Unexcused delay in seeking to amend
the [pleading], by itself, is a valid basis for denial of a motion to amend. See Mathis v.
Mi assachusetts Elec. Co., 409 Mass. 256, 265 (1991); Barbosa, 404 Mass. 610, 621-22
(1989). Having a “late dawning idea” is not sufficient grounds under Rule 15 for
amendment of a complaint. DiVenuti v. Reardon, 37 Mass. App. Ct. 73, 77 (1994).
In this case, the Mass. R. Civ. P. 15 deadline expired on April 18, 2017. The
Plaintiff should have been aware of T&M’s involvement with the Union Station Project
as early as February 1, 2017. Nathan Clinard, DOC’s Mass. R. Civ. P 30(b)(6) designee
testified as follows:
Q Just looking at the daily reports from 10/28/2015,
down towards the bottom it has TNM backfilling.
AL Um-hmm.
What about that paragraph leads you to believe that
they were backfilling around the area where Mr.
Woods’ accident occurred?
Because the drawings it’s depicted as stair lobby
area 1.
DOC Depo. 90:21 - 91:5, attached as Exhibit 1. Also, the daily job reports that DOC
provided to the Plaintiff in response to Requests for Production of Documents
mentions that on October 27 - 29, 2015, T&M was backfilling the area where the
Plaintiffs alleged incident occurred. Daily Job Reports, attached as Exhibit 2.
Moreover, on July 19, 2017 A&C’s Mass. R. Civ. P 30(b)(6) designee testified at his
deposition as follows:
Q Other than Manafort, do you recall which other
subcontractors were working in the area at the time?
A There was T&M, who was doing site work.
A&C Depo. 142:7, attached as Exhibit 3.
Given this testimony and documentary evidence, the Plaintiff should have
sought to Amend his Complaint no less than eight months ago. To permit the
Plaintiff to make a direct negligence claim against T&M at this late stage in the
litigation process would be unfairly prejudicial. Several depositions have already been
taken in this matter which T&M’s counsel did not attend. Had T&M’s counsel
attended those depositions, certain objections could have been made in defense of
T&M. Assuming T&M is permitted to depose the fact witnesses and Mass. R. Civ. P
30(b)(6) designees that have already been deposed, there is no guarantee that these
individuals will be able to be located. It is quite conceivable that one or more of these
individuals have relocated, which would pose a serious disadvantage to T&M. Also,
even if these individuals were made available, the passage of time surely will have
impacted their memories to T&M’s detriment.
This matter essentially mirrors what occurred in Walsh, wherein the plaintiff
waited to file an amended pleading nearly 18 months after filing its original pleading.
Just as in Walsh, this Court should deny the Plaintiffs Motion for Leave to Amend his
Complaint where there is no justification for the lateness of the Motion and where
T&M would be prejudiced by addition of direct negligence claims against it at this late
stage in the litigation process. Walsh, 414 Mass. at 287; Mathis, 409 Mass. at 264-
265.
B. The Plaintiff's Motion for Leave to Amend his Complaint should be denied
because the proposed direct claims against T&M are futile.
Futility of a proposed amendment is good cause to deny a motion to amend.
Ramirez v. Graham, 64 Mass. App. Ct. 573, 579-80 (2005). The Plaintiff's claim of
negligence against T&M is based upon the self-serving allegation that T&M “used
plywood to protect its employees running the compactor to backfill the job site.” See
Plaintiffs Motion, Exhibit A at 15. None of the answers to interrogatories, documents
5
produced, or deposition testimony corroborates this assertion. In fact, the discovery
that has already taken place in this matter demonstrates that T&M did not use, move.
supply, or otherwise handle plywood when it was performing backfilling work on
October 27 - 29, 2015. For example, Ben Drouin testified at his deposition as follows:
Q So prior to that date, October 29, 2015, you did not
see any plywood unsecured on top of rebar?
A oO
and
Q So when you and Dave arrived on the morning of the
29th, do you recall seeing any plywood in the area?
A. I did not notice any, no.
Drouin Depo. 23:17-20 and 42:5-8, attached as Exhibit 4
The Plaintiff will never be able to meet his burden of proof in this matter
because there are no facts that demonstrate that the plywood that struck the Plaintiff
was the fault of T&M. As such, the Plaintiff's proposed amendment to his Complaint
is futile, and his Motion for Leave to Amend his Complaint should therefore be denied.
Respectfully submitted,
T&M Equipment Corporation
By its attorneys,
Willi: F. Ahe , Jr. (013365)
Jonathan A. Barnes (680010)
CLARK, HUNT, AHERN & EMBRY
150 Cambridgepark Drive
Cambridge, MA 02140
617-494-1920
wahern@chelaw.com
jbarnes@chelaw.com
Dated: March 29, 2018
CERTIEIGATE
OF SERVICE
HEREBY CERTIFY THAT A TRUE COPY OF THE ABOVE.
DOCUMENT WAS SERVED UPON THE, aTTGRNEY OF
RECORD FOR E. ie CigIER PARTY BY‘ HAND / FAX.
on oan Pata
EMAIL ON
EXHIBIT 1
Nathan Clinard
9/22/2017
COMMONWEALTH OF MASSACHUSETTS
Hampshire, ss Superior Court Department
No. 1680CV167
FOO I III IOI II IOI III IO Ie *
DAVID WOODS,
Plaintiff
vs.
AQUADRO & CERRUTI, INC. and DANIEL
10 O'CONNELL'S SONS INC.,
in Defendants
12 vs.
13 MANAFORT PRECISION, LLC,
14 Third-Party Defendants
15 FO III II TIO OR RI IR I I I IK *
16
17 DEPOSITION OF: NATHAN CLINARD
18 ALEKMAN DITUSA
19 1550 Main Street, Suite 401
20 Springfield, Massachusetts
21 September 22, 2017 10:14 A.M.
22
23 Sharon Waskiewicz
24 Court Reporter
CATUOGNO COURT REPORTING & STEN-TEL TRANSCRIPTION
Springfield,
MA Worcester, MA Boston,
MA Providence,RI
Nathan Clinard 90
9/22/2017
documents that we submitted to you and looking,
really looking at them, there is as-builts, there is
record drawings, the daily reports of 09, we
identified, we documented this happened on this day,
this day, this day, looked at the drawings, and we
were able to identify that the rebar cage was ten
plus feet off of the grade until the end of business
on the 28th.
Q. And I -- when we say "this week", it just
10 seemed odd. I just wanted to make sure that I
1L understood you. That's why I said --
12 Okay. So that is based on additional
13 information that you have obtained and Looking at
14 further, looking at the documents closer?
15 A This is based on information that you
16 requested, we submitted, and we just looked at them a
17 hell of a lot gloser.
18 Q. Thank you.
19 A You're welcome.
20 FURTHER EXAMINATION BY MR. DiTUSA:
21 Q. dust looking at the daily reports from
22 10/28/2015, down towards the bottom it has TNM
23 backfilling.
24 A Um-hmm.
CATUOGNO COURT REPORTING & STEN-TEL TRANSCRIPTION
Springfield,MA Worcester, MA Boston,
MA Providence,RI
Nathan Clinard 91
9/22/2017
1 Q. What about that paragraph leads you to believe
2 that they were backfilling around the area where
Mr. Woods' accident occurred?
A Because on the drawings it's depicted as stair
lobby area 1.
Q. Which drawings?
A. There are record drawings that we just
submitted to you.
MS. TREMBLAY Right.
10 THE WITNESS: And that particular drawing
11 is SF-401.
12 MR. DiTUSA: All right. Just go off the
13 record for a minute. I just want to find that
14 drawing.
15 THE VIDEOGRAPHER: The time is 12:23 p.m.
16 We're off the record.
17 MR. DiTUSA: Would you please mark this.
18 (Exhibit NC-27, diagram, marked)
19 THE VIDEOGRAPHER: The time is 12:28 p.m.
20 We're on the record.
21 Q. (By Mr. DiTusa) Thank you. I am just going
22 to continue.
23 What I pulled out was the diagram labeled
24 "SF-401. We had it marked as Exhibit 27. And you
CATUOGNO COURT REPORTING & STEN-TEL TRANSCRIPTION
Springfield, MA Worcester, MA Boston, MA Providence, RI
EXHIBIT 2
se
Daily Report
PROJECT: Union Station Transportation DATE: 10/27/2015
Center
2012-130
AUTHOR: Gregory Modzelewski DAY OF WEEK: Tuesday
EXHIBIT
ge 1BBs
{ (3b Ue
Page 1. of 4
Daily Report
OATE: 10/27/2015
AUTHOR:
REMARKS: Action Steel bolted seismic clips on level 3. Also epoxied anchor bolts
to fasten channe! to BOH parapet walls on eastern wing, and bolted
lateral brace to post.
Adams Plumbing continued installation of roof drains on western wing
of Terminal Building.
American continued to removed concrete rubble frorn level 2 that
accumulated from slab 3 demo. Also cut MEP opening In second finger
in from the west.
Armani Restoration continued to apply waterproofing membrane on
level 3 window sills. Waterproofed western wall of shear wall along 3
line,
Avid Ironworks continued to weld angles on retaining wall for Total
Wall Tle In.
Cantarella & Son pressure washed southern walls. Continued to
repoint masonry at Penthouse walls. Also began to repoint brick on
western facade, Continued to grind down masonry joints to repair
cracks on northern facade,
Colmac Installed window sll blocking on misc windows missed
Previously throughout building. Continued to install blocking on level 1
windows.
H. Carr sprayed fireproofing onto level 1 columns.
.W. Egan finished installing poly containment area to continue sand
blasting of last bay In tunnel.
3.D. Rivet waterproofed the second floor comice on the northern
elevation.
Manafort Precision poured concrete into electrical duct bank in busway
area/east of Terminal Building. Also began to set forms for DMPs in
elevator 1 and 2 of Terminal Building.
M.L.Schmitt Installed electrical condults east of office trallers,
T&M backfilled continued to cut soil down for sub grade for roadway
along F.B Murray Street/new Liberty Street roadway. Backfilled at pile
cap that was poured Friday In stair lobby 1 area. Continued demolition
of electrical vault near stalr lobby 2 of Parking Garage.
Universal Electric Installed electrical conduit running east of 5 line for
Parking Garage.
Electrical Inspector was on site to Inspect Parking Garage conduit.
Page 2 of 4
Daily Report
DATE: 10/27/2015
AUTHOR:
PERSONNEL ON-SITE
SUBCONTRACTOR HEADCOUNT DESCRIPTION OF WORK & LOCATION
Manafort Precision 2 Carpenter, 1 Laborer, 1 Ironworker,
Foreman
Arman Restoration Inc. 2 Laborers, 1 Foreman
Avid Ironwarks, Inc. 2 Ironworkers, 1 Foreman
Universal Electric 1 Foreman
Cantarella and Son, Inc. 12 6 Masons, 5 Laborers, 1 Super _
Adams Plumbing & 3 Plumbers, 1 Foreman
Heating, Inc.
T&M Equipment 10 5 Laborer, 4 Operator, 1 Foreman
Corporation
1.D. Rivet & Co., Inc. 2 Laborers, 1 Foreman
H. Carr & Sons, Inc. 4 Laborer, 1 Foreman
American Environmental, 3 laborers, 1 Foreman
Inc.
Shepard Steel 1 Welder, 3 Laborers, 1 Foreman (All Sub Action
Steel)
Colmac Construction, LLC 3 Carpenters
John W. Egan Co., inc 2 Laborers, 1 Foreman
TOTAL: 62
INTERNAL EMPLOYEE ON SITE JOB TITLE NOTES
Dan Wellington
Kristin Ryan Administrative
Assistant
Andrew Wurszt
Bob Aquadro Project Manager
Gregory Modzelewski xX
Rick Jackson
Noel Southgate Xd
Anjanette Kelso Assistant Project
Manager
TOTAL:
VISITORS COMPANY PURPOSE
Rico B City of Springfield Inspect parking garage conduits
TOTAL: 1
Page 3 of 4
Daily Report
DATE: 40/27/2015
AUTHOR:
ACTION ITEMS
———
uction
2 [Freeland Constr
[Leroy Clink
Inc..
lding,ng, Inc
Buildi
USAA Bui _———-
____a
COPIES: ae ~[—"Skkaannsskkas US
~-
Sy Nguyen
Daily Report
[oy exe)
PROJECT: Union Station Transportation DATE: 10/28/2015.
‘Center .
2012-130
AUTHOR: Gregory Modzelewski DAY OF WEEK: Wednesday
EXHIBI
Ls
Page 1 of 4
rs
Daily Report
DATE; 10/28/2015
AUTHOR:
REMARKS: Actlon Steel bolted selsmic clips on level 3. Also epoxied bolts and
installed posts/lateral braces for BOH parapet walls. Began welding
steel at light well openings in between Terminal Building Fingers.
Adams Plumbing continued Installation of roof drains on western wing
of Terminal Bullding.
American continued to clean up roof area due to housekeeping Issues
on ticket. Saw cut pockets for parapet wall bracing.
Armani Restoration continued to apply waterproofing membrane on
level 3 window sills.
Avid Ironworks continued ta weld angles on retaining wall for Total
Wall Tie In.
Cantarella & Son pressure washed southern walls. Continued to
repoint masonry at Penthouse walls. Also began to repoint brick on
western facade for parapet wall, and set flashing on completed
sections. Continued to grind down masonry joints to repalr cracks on
northern facade.
Colmac continued to install blocking on level 1 windows.
Hh, Carr sprayed fireproofing onto level 1 columns/Mezzanine.
1,W. Egan began sandblasting of last bay in Passenger Tunnel area.
J.D. Rivet waterproofed the secand floor cornice on the northern
elevation. Began installing plywood below parapet bracing channef for
Taofing membrane.
Manafort Precision continued to set rebar In elevator 1 and 2 pit area.
Began epoxying rebar Into concrete for concrete curb at base of
retaining wall.
M.L.Schmitt installed electrical condults east of office trailers.
T&M backfilled continued to cut soll down for sub grade for roadway
along F.B Murray Street/new Uberty Street roadway. Backfilled at pite
cap that was poured Friday In stair lobby 1 area. Continued demolition
of electrical vault near stair lobby 2 of Parking Garage. Excavated for
canopy pier footing 16. Uncovered an additional footing In Baggage
Bullding footprint,
Universal Electric installed electrical conduit running east of 5 line for
Parking Garage.
Columbia Gas (working for City of Springfield) was on site to begin
laying line In from Dwight Street along F.B. Murray Street. Four
workers were on site.
Page 2 of 4
Daily Report
DATE: 10/28/2015
AUTHOR:
WEATHER
TIME TEMP ‘WIND SPEED. HUMIDITY | REMARKS
oe
8:00 AM 37 OF 3 mph 95 % | Partly Cloudy
12:00 PM 48°F | 5 mph* 77 % | Cloudy
PERSONNEL ON-SITE
SUBCONTRACTOR HEADCOUNT DESCRIPTION OF WORK & LOCATION
American Environmental, 4 laborers, 1 Foreman
Inc.
Cantarella and Son, Inc. 12 6 Masons, 5 Laborers, 1 Super
Universal Electric i Foreman
1,D, Rivet & Co., Inc. 4 Laborers, 1 Foreman
Adams Plumbing & 3 Plumbers, 1 Foreman
Heating, Inc.
John W. Egan Co., Inc 2 Laborers, 1 Foreman
Manafort Precision 2 Carpenter, 1 Laborer, 1 Iranworker,
Foreman
Avid Ironworks, Inc. 2 Ironworkers, 1 Foreman
T&M Equipment io 5 Laborer, 4 Operator, 1 Foreman
Corporation
H. Carr & Sons, Inc. 4 Laborer, 1 Foreman
Shepard Steel 1 Welder, 3 Laborers, 1 Foreman (All Sub Action
Steel)
Armani Restoration Inc. 2 Laborers, 1 Foreman
Colmac Construction, LLC 3 Carpenters
TOTAL: 64
Page 3 of 4
ee
Daily Report
DATE: 10/28/2015
AUTHOR:
INTERNAL EMPLOYEE ON SITE 406 TITLE NOTES
Rick Jackson
Kristin Ryan x Administrative
Assistant
Anjanette Kelso J Assistant Project
Manager
Dan Wellington
Noel Southgate
Andrew Wurszt bd
Bob Aquadro i Project Manager
Gregory Modzelewskl
TOTAL:
VISITORS COMPANY PURPOSE
Jean Crevier M. L. Schmitt Coordination meeting
Bruce Carter 3.D. Rivet & Co., Inc. Orientation
Mike Dupuls -D. Rivet & Co., Inc. Orientation
TOTAL: 3
ACTION ITEMS:
[ Teray Clink [Freefand Construction
(Sy Nauyen — [ Skanska USA Building, Inc. ad
Page 4 of 4
a4
r
amo
a
Daily Report
(seta)
PROJECT: Union Station’ Transportation DATE: 10/29/2015
Center
2012-130
AUTHOR: Gregory Madzelewskt DAY OF WEEK: Thursday
Page 1, of 4
Daily Report
DATE: 10/29/2015
AUTHOR:
REMARKS: Action Stee! bolted seismic cilps on level 3. Also epoxied bolts and
installed posts/fateral braces for BOH parapet walls. Began welding
steel at light well openings in between Terminal Building Fingers.
Adams Plumbing continued Installation of roof drains on western wing
of Terminal Building.
American continued to clean up roof area due to housekeeping issues
on ticket. Saw cut packets for parapet wall bracing.
Armani Restoration continued to apply waterproofing membrane on
level 3 window sills.
Avid Ironworks continued to weld angles on retaining wall for Total
Wall Tie in.
Cantarella & Son pressure washed southern walls. Continued to
repoint masonry at Penthouse walls. Also began to repoint brick on
western facade for parapet wall, and set flashing on completed
sections. Continued to grind down masanry joints to repair cracks on
northern facade.
H. Carr sprayed fireproofing onto level 1 columns/Mezzanine.
J.W. Egan began sandblasting of last bay in Passenger Tunnel area.
3.D. Rivet waterproofed the second floor comice on the northern
elevation, Began installing plywood below parapet bracing channel for
roofing membrane.
Manafort Precision continued to set rebar In elevator 1 and 2 pit area.
Began epoxying rebar Into concrete for concrete curb at base of
retaining wall. One worker was struck by piece of plywood which was
set airborne due to sudden large gust of wind at approximately 1:30
pm. Worker went to hospital and had concussion and sprained wrist.
M.L.Schmitt instalted electrical conduits east of office trailers.
T&M backfilled continued to cut soil down for sub grade for roadway
along F.B Murray Street/new Liberty Street roadway. Backfilled at pile
cap that was poured Friday in stair lobby 1 area. Continued demolition
of electrical vault near stair lobby 2 of Parking Garage. Excavated for
canopy pler footing 16. Uncovered an additional footing In Baggage
Bullding footprint.
Universal Electric installed electrical conduit running east of 5 Sine for
Parking Garage.
Columbia Gas (working for City of Springfield) was on site to begin
laying line in from Dwight Street along F.B. Murray Street. Four
workers were on site,
Page 2 of 4
.
”
Daily Report
DATE: 10/29/2015
AUTHOR:
WEATHER
TIME WIND SPEED HUMIDITY | REMARKS
8:00 AM 66 OF 10 mph 88 % Cloudy
PERSONNEL ON-SITE
SUBCONTRACTOR HEADCOUNT DESCRIPTION OF WORK & LOCATION
Universal Electric 1 1 Foreman
H. Carr & Sons, Inc. 5 4 Laborer, 1 Foreman
no
| Cantarelia and Son, Inc. 12 6 Masons, 5 Laborers, 1 Super
Shepard Steel 5 1 Welder, 3 Laborers, 1 Foreman (All Sub Action
Steel)
Armani Restoration Inc. 3 2 Laborers, 1 Foreman
Avid Ironworks, Inc. 3 2 Ironworkers, 1 Foreman
Adams Plumbing & 3 Plumbers, 1 Foreman
Heating, Inc.
John W. Egan Co., Inc 2 Laborers, 1 Foreman
American Environmental, 4 laborers, 1 Foreman
Inc.
T&M Equipment 10 5 Laborer, 4 Operator, 1 Foreman
Corporation
J.D, Rivet & Co., Inc. 4 Laborers, 1 Foreman
Manafort Precision 2 Carpenter, 1 Laborer, 1 Ironworker, 1
Foreman
TOTAL; 61
INTERNAL EMPLOYEE ON SITE JOB TITLE NOTES
Andrew Wurszt J
Anjanette Kelso K Assistant Project
Manager
Dan Wellington
Kristin Ryan Administrative
Assistant
Bob Aquadro bd Project Manager
Rick Jackson
Gregory Modzelewskl XJ
Noel Southgate Xx
TOTAL:
Page 3 of 4
' te
ae
Daily Report
DATE: 10/29/2015
AUTHOR:
VISITORS COMPANY PURPOSE
Lou Iacobucci Armani Restoration Inc.
Uam McLam Kensel
Tammy Gaherty BASF
Brian D‘Annolfo Armani Restoration
TOTAL: 4
ACTION ITEMS
Chenoy Clink [Freeland Construction
COPIES:
[Sy Nguyen’ | Skanska USA Building, Inc.
Page 4 of 4
EXHIBIT 3
' ca
Francis Aquadro
7/19/2017
COMMONWEALTH OF MASSACHUSETTS
Hampshire, ss Superior Court Department
No. 1680CV167
TORI TOO IR TIKI I OR I I TOR IR III II I A aR aR
DAVID WOODS,
Plaintiff
vs
10 AQUADRO & CERRUTI, INC. and DANIEL O'CONNELL'S
11 SONS INC.,
12 Defendants
13 vs.
14 MANAFORT PRECISION, LLC,
1s Third-Party Defendants
16 RIK TK IK IR KKK KR RR IK IKK TOK IR IT RE OR IR RIE IOI OK
17 30(b)6 DEPOSITION OF: FRANCIS AQUADRO
18 ALEKMAN DiTUSA
19 1550 Main Street
20 Springfield, Massachusetts
21 July 19, 2017 9:12 a.m.
22
23 LISA A. REGENSBURGER
24 COURT REPORTER
CATUOGNO COURT REPORTING & STEN-TEL TRANSCRIPTION
Springfield, MA Worcester, MA Boston, MA Providence,RI
ova
Francis Aquadro 142
7/19/2017
Q. Do you know where that plywood came
from?
A. No, I don't. It's another vendor,
another contractor.
Q.- But you do not know which one?
A. No.
Q. Other than Manafort, do you recall
which other subcontractors were working in the
area at the time?
10 A. There was T&M, who was doing site
11 work. There was a company installing the visual
12 panels along the face of the wall.
13 Q. Do you recall who that was?
14 A. I don't know who that was. I didn't
15 have a direct relationship with them. Solr
16 don't know who that was.
17 There was the -- I think Armani was
18 doing the damp proofing for the elevator shaft,
19 who was there.
20 Q. Anything else?
21 A. You had an electrician. You had a
22 plumber. They were working in the vicinity.
23 Q. Okay. I'm going to show you a copy
24 of a photograph that was produced by Aquadro &
CATUOGNO COURT REPORTING & STEN-TEL TRANSCRIPTION
Springfield, MA Worcester, MA Boston, MA Providence, RI
EXHIBIT 4
a4
COMMONWEALTH OF MASSACHUSETTS
Hampshire, ss. Superior Court Department
of the Trial Court
Civil Action No. 1680CV00167
DAVID A. WOODS,
Plaintiff
vs.
AQUADRO & CERRUTI, INC.,
Defendant
and
10 DANIEL O'CONNELL'S SONS, INC.,
Defendant and Third-Party Plaintiff
11
vs.
12
MANAFORT PRECISION, LLC,
13 Third-Party Defendant
14
DEPOSITION OF: BENJAMIN DROUIN, taken before
15 Sarah L. Mubarek, Notary Public, pursuant to Rule 30
of the Massachusetts Rules of Civil Procedure, at
16 the offices of Morrison Mahoney LLP, 1500 Main
Street, Suite 2400, Springfield, Massachusetts
17 01115, on November 30, 2017, commencing at 9:10 a.m.
18
19
20
21
Sarah L. Mubarek
22 Registered Professional Reporter
23
1 one
23
work where whatever the case may be, they ask a
contractor to finish. So for instance, if Aquadro
wasn't available, Rick Jackson would ask us to do
it. Then they called in the concrete, they take
care of the rebar. So we're just there to form it
and place it.
Q Do you recall what area of the project
you were on at the time of Mr. Woods' accident on
October 29, 2015?
10 A Yeah, we were at Al6, which is blueprint
12 talk, but blueprints are broken up by numbers and
12 letters. This specific pier footing that we were on
13 was Al6 on the blueprints.
14 Q So would you consider that to be part of
15 the Union Station site or the parking?
16 A It's the Union Station site.
17 Q So prior to that date, October 29, 2015,
18 you did not see any plywood unsecured on top of
19 rebar?
20 A. No.
21 Q And in October 2015, do you recall seeing
22 Aquadro & Cerruti working in the A16 area?
23 A I don't remember if it was E don't
ae 1%
42
Q In other words, where the backfill is, do
you know what this looked like the day prior to
October 29th?
A I do not, no.
Q So when you and Dave arrived on th
Preview
33.4, t COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO, 1680CV00167 DAVID A. WOODS, Plaintiff Vv. AQUADRO & CERRUITI, INC., Defendant And HAMPSHIRE SUPERIOR COURT DANIEL O’CONNELL’S SONS, INC., Defendant/Third-Party Plaintiff APR17 2018 v. HARRY JEKANOWSKI, JR. MANAFORT PRECISION, LLC and CLERK/MAGISTRATE T&M EQUIPMENT CORPORATION Third-Party Defendants THE THIRD-PARTY DEFENDANT, T&M EQUIPMENT CORPORATION’S MEMORANDUM OF LAW IN SUPPORT OF ITS OPPOSITION TO THE PLAINTIFF, EY SEE DAVID A. WS WOODS’ MOTION MU TION FOR SOR LEAVE LEAVE TO TO FILE AN AMENDED COMPLAINT The Third-Party Defendant, T&M Equipment Corporation (“T&M”) hereby submits this Memorandum of Law in support of its Opposition to the Plaintiff, David A. Woods’ (the “Plaintiff”} Motion for Leave to File an Amended Complaint. L FACTUAL BACKGROUND The Plaintiff, David A. Woods (the “Plaintiff”) filed a Complaint against the Defendants, Aquadro & Cerruit, Inc. (“A&C”) and Daniel O’Connell’s Sons, Inc. (“DOC”) The Plaintiff's Complaint alleges that on October 29, 2015 at approximately 1:30 p.m., he was working as a Lead Concrete Foreman for his employer Manafort Precision, LLC at a jobsite known as the Union Station project located in Springfield, Massachusetts when a piece of unsecured plywood that was covering exposed rebar was blown by a strong gust of wind, striking the Plaintiff, which resulted in serious personal injuries to the Plaintiff (the “incident”). The Plaintiff further alleges that A&C and DOC hada duty to make the Union Station project site reasonably safe and free from all foreseeable hazards and that A&C and DOC breached that duty, resulting in the incident and the Plaintiff's subsequent injuries. The Plaintiff filed his Complaint on or about October 6, 2016. On or about November 16, 2016, the Defendant, DOC filed its Answer to the Plaintiffs Complaint. DOC also made Cross-Claims against A&C for Indemnification, Breach of Contract and Contribution. On or about November 21, 2016, the Defendant DOC filed a Third- Party Complaint against Manafort Precision, LLC alleging claims of Indemnification and Breach of Contract. On December 5, 2017, the Defendant filed another Third- Party Complaint against T&M alleging claims of Indemnification, Breach of Contract, and Contribution. On March 20, 2016, approximately 18 months after the Plaintiff filed his original Complaint, the Plaintiff has moved for leave to amend his Complaint to add T&M as a direct defendant. Plaintiffs counsel has taken DOC’s Rule 30(b)(6) deposition, A&C’s Rule 30(b)(6) ‘ deposition. Plaintiff's counsel has also taken the deposition of Richard Jackson, a DOC employee and fact witness in this matter. DOC’s counsel has taken the deposition of Benjamin Drouin, the Plaintiffs co-worker at Manafort Precision and a fact witness in this matter. The Plaintiff, A&C, and DOC exchanged and responded to written discovery long before the Plaintiff filed this instant motion. T&M did not participate in any of this discovery. Hl. STANDARD When a plaintiff moves to amend his complaint to allege direct claims against a third-party defendant pursuant to Mass. R. Civ. P Rule 14{(a), it is “akin to claims in an amended pleading to add a party defendant” pursuant to Mass. R. Civ. P. 15 Somerville v. Toshoku Am., 1996 Mass. Super. LEXIS 545, *19 (1996). Mass. R. Civ. P. 15 provides that a pleading may be amended with leave of court and leave shall be freely given when justice so requires. The decision is discretionary with the judge, and leave should be granted “unless some good reason appears for denying it.” Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 289 (1977). The liberal amendment policy of Mass. R. Civ. P. 15 is not unfettered. “The decision whether to allow a motion to amend a pleading is a discretionary decision and depends upon a judge’s weighing of several factors.” Barbosa v. Hopper Fe eds, Inc., 404 Mass. 610, 621 (1989). Those factors include “undue delay, bad faith or dilatory motive on the party of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Ramirez v. Graham, 64 Mass. App. Ct. 573, 579-80 (2005). Il. ARGUMENT A. The Plaintiff's Motion for Leave to Amend his Complaint should be denied because T&M will be prejudiced by the Plaintiff’s inexcusable delay. T&M will be prejudiced by the Plaintiff's inexcusable delay and neglect in failing to seek to amend its Complaint to include claims against T&M at this late stage. In considering whether to allow a party to amend a pleading, courts consider how long the moving party has delayed in seeking to amend their pleading. Walsh v. Chestnut Hill Bank & Trust Co., 414 Mass. 283 (1993) (plaintiffs motion to amend complaint denied where she moved for leave to amend more than 18 months after she had filed 3 her original complaint, and had been aware of the facts of her case which might support her amendments for quite some time). Unexcused delay in seeking to amend the [pleading], by itself, is a valid basis for denial of a motion to amend. See Mathis v. Mi assachusetts Elec. Co., 409 Mass. 256, 265 (1991); Barbosa, 404 Mass. 610, 621-22 (1989). Having a “late dawning idea” is not sufficient grounds under Rule 15 for amendment of a complaint. DiVenuti v. Reardon, 37 Mass. App. Ct. 73, 77 (1994). In this case, the Mass. R. Civ. P. 15 deadline expired on April 18, 2017. The Plaintiff should have been aware of T&M’s involvement with the Union Station Project as early as February 1, 2017. Nathan Clinard, DOC’s Mass. R. Civ. P 30(b)(6) designee testified as follows: Q Just looking at the daily reports from 10/28/2015, down towards the bottom it has TNM backfilling. AL Um-hmm. What about that paragraph leads you to believe that they were backfilling around the area where Mr. Woods’ accident occurred? Because the drawings it’s depicted as stair lobby area 1. DOC Depo. 90:21 - 91:5, attached as Exhibit 1. Also, the daily job reports that DOC provided to the Plaintiff in response to Requests for Production of Documents mentions that on October 27 - 29, 2015, T&M was backfilling the area where the Plaintiffs alleged incident occurred. Daily Job Reports, attached as Exhibit 2. Moreover, on July 19, 2017 A&C’s Mass. R. Civ. P 30(b)(6) designee testified at his deposition as follows: Q Other than Manafort, do you recall which other subcontractors were working in the area at the time? A There was T&M, who was doing site work. A&C Depo. 142:7, attached as Exhibit 3. Given this testimony and documentary evidence, the Plaintiff should have sought to Amend his Complaint no less than eight months ago. To permit the Plaintiff to make a direct negligence claim against T&M at this late stage in the litigation process would be unfairly prejudicial. Several depositions have already been taken in this matter which T&M’s counsel did not attend. Had T&M’s counsel attended those depositions, certain objections could have been made in defense of T&M. Assuming T&M is permitted to depose the fact witnesses and Mass. R. Civ. P 30(b)(6) designees that have already been deposed, there is no guarantee that these individuals will be able to be located. It is quite conceivable that one or more of these individuals have relocated, which would pose a serious disadvantage to T&M. Also, even if these individuals were made available, the passage of time surely will have impacted their memories to T&M’s detriment. This matter essentially mirrors what occurred in Walsh, wherein the plaintiff waited to file an amended pleading nearly 18 months after filing its original pleading. Just as in Walsh, this Court should deny the Plaintiffs Motion for Leave to Amend his Complaint where there is no justification for the lateness of the Motion and where T&M would be prejudiced by addition of direct negligence claims against it at this late stage in the litigation process. Walsh, 414 Mass. at 287; Mathis, 409 Mass. at 264- 265. B. The Plaintiff's Motion for Leave to Amend his Complaint should be denied because the proposed direct claims against T&M are futile. Futility of a proposed amendment is good cause to deny a motion to amend. Ramirez v. Graham, 64 Mass. App. Ct. 573, 579-80 (2005). The Plaintiff's claim of negligence against T&M is based upon the self-serving allegation that T&M “used plywood to protect its employees running the compactor to backfill the job site.” See Plaintiffs Motion, Exhibit A at 15. None of the answers to interrogatories, documents 5 produced, or deposition testimony corroborates this assertion. In fact, the discovery that has already taken place in this matter demonstrates that T&M did not use, move. supply, or otherwise handle plywood when it was performing backfilling work on October 27 - 29, 2015. For example, Ben Drouin testified at his deposition as follows: Q So prior to that date, October 29, 2015, you did not see any plywood unsecured on top of rebar? A oO and Q So when you and Dave arrived on the morning of the 29th, do you recall seeing any plywood in the area? A. I did not notice any, no. Drouin Depo. 23:17-20 and 42:5-8, attached as Exhibit 4 The Plaintiff will never be able to meet his burden of proof in this matter because there are no facts that demonstrate that the plywood that struck the Plaintiff was the fault of T&M. As such, the Plaintiff's proposed amendment to his Complaint is futile, and his Motion for Leave to Amend his Complaint should therefore be denied. Respectfully submitted, T&M Equipment Corporation By its attorneys, Willi: F. Ahe , Jr. (013365) Jonathan A. Barnes (680010) CLARK, HUNT, AHERN & EMBRY 150 Cambridgepark Drive Cambridge, MA 02140 617-494-1920 wahern@chelaw.com jbarnes@chelaw.com Dated: March 29, 2018 CERTIEIGATE OF SERVICE HEREBY CERTIFY THAT A TRUE COPY OF THE ABOVE. DOCUMENT WAS SERVED UPON THE, aTTGRNEY OF RECORD FOR E. ie CigIER PARTY BY‘ HAND / FAX. on oan Pata EMAIL ON EXHIBIT 1 Nathan Clinard 9/22/2017 COMMONWEALTH OF MASSACHUSETTS Hampshire, ss Superior Court Department No. 1680CV167 FOO I III IOI II IOI III IO Ie * DAVID WOODS, Plaintiff vs. AQUADRO & CERRUTI, INC. and DANIEL 10 O'CONNELL'S SONS INC., in Defendants 12 vs. 13 MANAFORT PRECISION, LLC, 14 Third-Party Defendants 15 FO III II TIO OR RI IR I I I IK * 16 17 DEPOSITION OF: NATHAN CLINARD 18 ALEKMAN DITUSA 19 1550 Main Street, Suite 401 20 Springfield, Massachusetts 21 September 22, 2017 10:14 A.M. 22 23 Sharon Waskiewicz 24 Court Reporter CATUOGNO COURT REPORTING & STEN-TEL TRANSCRIPTION Springfield, MA Worcester, MA Boston, MA Providence,RI Nathan Clinard 90 9/22/2017 documents that we submitted to you and looking, really looking at them, there is as-builts, there is record drawings, the daily reports of 09, we identified, we documented this happened on this day, this day, this day, looked at the drawings, and we were able to identify that the rebar cage was ten plus feet off of the grade until the end of business on the 28th. Q. And I -- when we say "this week", it just 10 seemed odd. I just wanted to make sure that I 1L understood you. That's why I said -- 12 Okay. So that is based on additional 13 information that you have obtained and Looking at 14 further, looking at the documents closer? 15 A This is based on information that you 16 requested, we submitted, and we just looked at them a 17 hell of a lot gloser. 18 Q. Thank you. 19 A You're welcome. 20 FURTHER EXAMINATION BY MR. DiTUSA: 21 Q. dust looking at the daily reports from 22 10/28/2015, down towards the bottom it has TNM 23 backfilling. 24 A Um-hmm. CATUOGNO COURT REPORTING & STEN-TEL TRANSCRIPTION Springfield,MA Worcester, MA Boston, MA Providence,RI Nathan Clinard 91 9/22/2017 1 Q. What about that paragraph leads you to believe 2 that they were backfilling around the area where Mr. Woods' accident occurred? A Because on the drawings it's depicted as stair lobby area 1. Q. Which drawings? A. There are record drawings that we just submitted to you. MS. TREMBLAY Right. 10 THE WITNESS: And that particular drawing 11 is SF-401. 12 MR. DiTUSA: All right. Just go off the 13 record for a minute. I just want to find that 14 drawing. 15 THE VIDEOGRAPHER: The time is 12:23 p.m. 16 We're off the record. 17 MR. DiTUSA: Would you please mark this. 18 (Exhibit NC-27, diagram, marked) 19 THE VIDEOGRAPHER: The time is 12:28 p.m. 20 We're on the record. 21 Q. (By Mr. DiTusa) Thank you. I am just going 22 to continue. 23 What I pulled out was the diagram labeled 24 "SF-401. We had it marked as Exhibit 27. And you CATUOGNO COURT REPORTING & STEN-TEL TRANSCRIPTION Springfield, MA Worcester, MA Boston, MA Providence, RI EXHIBIT 2 se Daily Report PROJECT: Union Station Transportation DATE: 10/27/2015 Center 2012-130 AUTHOR: Gregory Modzelewski DAY OF WEEK: Tuesday EXHIBIT ge 1BBs { (3b Ue Page 1. of 4 Daily Report OATE: 10/27/2015 AUTHOR: REMARKS: Action Steel bolted seismic clips on level 3. Also epoxied anchor bolts to fasten channe! to BOH parapet walls on eastern wing, and bolted lateral brace to post. Adams Plumbing continued installation of roof drains on western wing of Terminal Building. American continued to removed concrete rubble frorn level 2 that accumulated from slab 3 demo. Also cut MEP opening In second finger in from the west. Armani Restoration continued to apply waterproofing membrane on level 3 window sills. Waterproofed western wall of shear wall along 3 line, Avid Ironworks continued to weld angles on retaining wall for Total Wall Tle In. Cantarella & Son pressure washed southern walls. Continued to repoint masonry at Penthouse walls. Also began to repoint brick on western facade, Continued to grind down masonry joints to repair cracks on northern facade, Colmac Installed window sll blocking on misc windows missed Previously throughout building. Continued to install blocking on level 1 windows. H. Carr sprayed fireproofing onto level 1 columns. .W. Egan finished installing poly containment area to continue sand blasting of last bay In tunnel. 3.D. Rivet waterproofed the second floor comice on the northern elevation. Manafort Precision poured concrete into electrical duct bank in busway area/east of Terminal Building. Also began to set forms for DMPs in elevator 1 and 2 of Terminal Building. M.L.Schmitt Installed electrical condults east of office trallers, T&M backfilled continued to cut soil down for sub grade for roadway along F.B Murray Street/new Liberty Street roadway. Backfilled at pile cap that was poured Friday In stair lobby 1 area. Continued demolition of electrical vault near stalr lobby 2 of Parking Garage. Universal Electric Installed electrical conduit running east of 5 line for Parking Garage. Electrical Inspector was on site to Inspect Parking Garage conduit. Page 2 of 4 Daily Report DATE: 10/27/2015 AUTHOR: PERSONNEL ON-SITE SUBCONTRACTOR HEADCOUNT DESCRIPTION OF WORK & LOCATION Manafort Precision 2 Carpenter, 1 Laborer, 1 Ironworker, Foreman Arman Restoration Inc. 2 Laborers, 1 Foreman Avid Ironwarks, Inc. 2 Ironworkers, 1 Foreman Universal Electric 1 Foreman Cantarella and Son, Inc. 12 6 Masons, 5 Laborers, 1 Super _ Adams Plumbing & 3 Plumbers, 1 Foreman Heating, Inc. T&M Equipment 10 5 Laborer, 4 Operator, 1 Foreman Corporation 1.D. Rivet & Co., Inc. 2 Laborers, 1 Foreman H. Carr & Sons, Inc. 4 Laborer, 1 Foreman American Environmental, 3 laborers, 1 Foreman Inc. Shepard Steel 1 Welder, 3 Laborers, 1 Foreman (All Sub Action Steel) Colmac Construction, LLC 3 Carpenters John W. Egan Co., inc 2 Laborers, 1 Foreman TOTAL: 62 INTERNAL EMPLOYEE ON SITE JOB TITLE NOTES Dan Wellington Kristin Ryan Administrative Assistant Andrew Wurszt Bob Aquadro Project Manager Gregory Modzelewski xX Rick Jackson Noel Southgate Xd Anjanette Kelso Assistant Project Manager TOTAL: VISITORS COMPANY PURPOSE Rico B City of Springfield Inspect parking garage conduits TOTAL: 1 Page 3 of 4 Daily Report DATE: 40/27/2015 AUTHOR: ACTION ITEMS ——— uction 2 [Freeland Constr [Leroy Clink Inc.. lding,ng, Inc Buildi USAA Bui _———- ____a COPIES: ae ~[—"Skkaannsskkas US ~- Sy Nguyen Daily Report [oy exe) PROJECT: Union Station Transportation DATE: 10/28/2015. ‘Center . 2012-130 AUTHOR: Gregory Modzelewski DAY OF WEEK: Wednesday EXHIBI Ls Page 1 of 4 rs Daily Report DATE; 10/28/2015 AUTHOR: REMARKS: Actlon Steel bolted selsmic clips on level 3. Also epoxied bolts and installed posts/lateral braces for BOH parapet walls. Began welding steel at light well openings in between Terminal Building Fingers. Adams Plumbing continued Installation of roof drains on western wing of Terminal Bullding. American continued to clean up roof area due to housekeeping Issues on ticket. Saw cut pockets for parapet wall bracing. Armani Restoration continued to apply waterproofing membrane on level 3 window sills. Avid Ironworks continued ta weld angles on retaining wall for Total Wall Tie In. Cantarella & Son pressure washed southern walls. Continued to repoint masonry at Penthouse walls. Also began to repoint brick on western facade for parapet wall, and set flashing on completed sections. Continued to grind down masonry joints to repalr cracks on northern facade. Colmac continued to install blocking on level 1 windows. Hh, Carr sprayed fireproofing onto level 1 columns/Mezzanine. 1,W. Egan began sandblasting of last bay in Passenger Tunnel area. J.D. Rivet waterproofed the secand floor cornice on the northern elevation. Began installing plywood below parapet bracing channef for Taofing membrane. Manafort Precision continued to set rebar In elevator 1 and 2 pit area. Began epoxying rebar Into concrete for concrete curb at base of retaining wall. M.L.Schmitt installed electrical condults east of office trailers. T&M backfilled continued to cut soll down for sub grade for roadway along F.B Murray Street/new Uberty Street roadway. Backfilled at pite cap that was poured Friday In stair lobby 1 area. Continued demolition of electrical vault near stair lobby 2 of Parking Garage. Excavated for canopy pier footing 16. Uncovered an additional footing In Baggage Bullding footprint, Universal Electric installed electrical conduit running east of 5 line for Parking Garage. Columbia Gas (working for City of Springfield) was on site to begin laying line In from Dwight Street along F.B. Murray Street. Four workers were on site. Page 2 of 4 Daily Report DATE: 10/28/2015 AUTHOR: WEATHER TIME TEMP ‘WIND SPEED. HUMIDITY | REMARKS oe 8:00 AM 37 OF 3 mph 95 % | Partly Cloudy 12:00 PM 48°F | 5 mph* 77 % | Cloudy PERSONNEL ON-SITE SUBCONTRACTOR HEADCOUNT DESCRIPTION OF WORK & LOCATION American Environmental, 4 laborers, 1 Foreman Inc. Cantarella and Son, Inc. 12 6 Masons, 5 Laborers, 1 Super Universal Electric i Foreman 1,D, Rivet & Co., Inc. 4 Laborers, 1 Foreman Adams Plumbing & 3 Plumbers, 1 Foreman Heating, Inc. John W. Egan Co., Inc 2 Laborers, 1 Foreman Manafort Precision 2 Carpenter, 1 Laborer, 1 Iranworker, Foreman Avid Ironworks, Inc. 2 Ironworkers, 1 Foreman T&M Equipment io 5 Laborer, 4 Operator, 1 Foreman Corporation H. Carr & Sons, Inc. 4 Laborer, 1 Foreman Shepard Steel 1 Welder, 3 Laborers, 1 Foreman (All Sub Action Steel) Armani Restoration Inc. 2 Laborers, 1 Foreman Colmac Construction, LLC 3 Carpenters TOTAL: 64 Page 3 of 4 ee Daily Report DATE: 10/28/2015 AUTHOR: INTERNAL EMPLOYEE ON SITE 406 TITLE NOTES Rick Jackson Kristin Ryan x Administrative Assistant Anjanette Kelso J Assistant Project Manager Dan Wellington Noel Southgate Andrew Wurszt bd Bob Aquadro i Project Manager Gregory Modzelewskl TOTAL: VISITORS COMPANY PURPOSE Jean Crevier M. L. Schmitt Coordination meeting Bruce Carter 3.D. Rivet & Co., Inc. Orientation Mike Dupuls -D. Rivet & Co., Inc. Orientation TOTAL: 3 ACTION ITEMS: [ Teray Clink [Freefand Construction (Sy Nauyen — [ Skanska USA Building, Inc. ad Page 4 of 4 a4 r amo a Daily Report (seta) PROJECT: Union Station’ Transportation DATE: 10/29/2015 Center 2012-130 AUTHOR: Gregory Madzelewskt DAY OF WEEK: Thursday Page 1, of 4 Daily Report DATE: 10/29/2015 AUTHOR: REMARKS: Action Stee! bolted seismic cilps on level 3. Also epoxied bolts and installed posts/fateral braces for BOH parapet walls. Began welding steel at light well openings in between Terminal Building Fingers. Adams Plumbing continued Installation of roof drains on western wing of Terminal Building. American continued to clean up roof area due to housekeeping issues on ticket. Saw cut packets for parapet wall bracing. Armani Restoration continued to apply waterproofing membrane on level 3 window sills. Avid Ironworks continued to weld angles on retaining wall for Total Wall Tie in. Cantarella & Son pressure washed southern walls. Continued to repoint masonry at Penthouse walls. Also began to repoint brick on western facade for parapet wall, and set flashing on completed sections. Continued to grind down masanry joints to repair cracks on northern facade. H. Carr sprayed fireproofing onto level 1 columns/Mezzanine. J.W. Egan began sandblasting of last bay in Passenger Tunnel area. 3.D. Rivet waterproofed the second floor comice on the northern elevation, Began installing plywood below parapet bracing channel for roofing membrane. Manafort Precision continued to set rebar In elevator 1 and 2 pit area. Began epoxying rebar Into concrete for concrete curb at base of retaining wall. One worker was struck by piece of plywood which was set airborne due to sudden large gust of wind at approximately 1:30 pm. Worker went to hospital and had concussion and sprained wrist. M.L.Schmitt instalted electrical conduits east of office trailers. T&M backfilled continued to cut soil down for sub grade for roadway along F.B Murray Street/new Liberty Street roadway. Backfilled at pile cap that was poured Friday in stair lobby 1 area. Continued demolition of electrical vault near stair lobby 2 of Parking Garage. Excavated for canopy pler footing 16. Uncovered an additional footing In Baggage Bullding footprint. Universal Electric installed electrical conduit running east of 5 Sine for Parking Garage. Columbia Gas (working for City of Springfield) was on site to begin laying line in from Dwight Street along F.B. Murray Street. Four workers were on site, Page 2 of 4 . ” Daily Report DATE: 10/29/2015 AUTHOR: WEATHER TIME WIND SPEED HUMIDITY | REMARKS 8:00 AM 66 OF 10 mph 88 % Cloudy PERSONNEL ON-SITE SUBCONTRACTOR HEADCOUNT DESCRIPTION OF WORK & LOCATION Universal Electric 1 1 Foreman H. Carr & Sons, Inc. 5 4 Laborer, 1 Foreman no | Cantarelia and Son, Inc. 12 6 Masons, 5 Laborers, 1 Super Shepard Steel 5 1 Welder, 3 Laborers, 1 Foreman (All Sub Action Steel) Armani Restoration Inc. 3 2 Laborers, 1 Foreman Avid Ironworks, Inc. 3 2 Ironworkers, 1 Foreman Adams Plumbing & 3 Plumbers, 1 Foreman Heating, Inc. John W. Egan Co., Inc 2 Laborers, 1 Foreman American Environmental, 4 laborers, 1 Foreman Inc. T&M Equipment 10 5 Laborer, 4 Operator, 1 Foreman Corporation J.D, Rivet & Co., Inc. 4 Laborers, 1 Foreman Manafort Precision 2 Carpenter, 1 Laborer, 1 Ironworker, 1 Foreman TOTAL; 61 INTERNAL EMPLOYEE ON SITE JOB TITLE NOTES Andrew Wurszt J Anjanette Kelso K Assistant Project Manager Dan Wellington Kristin Ryan Administrative Assistant Bob Aquadro bd Project Manager Rick Jackson Gregory Modzelewskl XJ Noel Southgate Xx TOTAL: Page 3 of 4 ' te ae Daily Report DATE: 10/29/2015 AUTHOR: VISITORS COMPANY PURPOSE Lou Iacobucci Armani Restoration Inc. Uam McLam Kensel Tammy Gaherty BASF Brian D‘Annolfo Armani Restoration TOTAL: 4 ACTION ITEMS Chenoy Clink [Freeland Construction COPIES: [Sy Nguyen’ | Skanska USA Building, Inc. Page 4 of 4 EXHIBIT 3 ' ca Francis Aquadro 7/19/2017 COMMONWEALTH OF MASSACHUSETTS Hampshire, ss Superior Court Department No. 1680CV167 TORI TOO IR TIKI I OR I I TOR IR III II I A aR aR DAVID WOODS, Plaintiff vs 10 AQUADRO & CERRUTI, INC. and DANIEL O'CONNELL'S 11 SONS INC., 12 Defendants 13 vs. 14 MANAFORT PRECISION, LLC, 1s Third-Party Defendants 16 RIK TK IK IR KKK KR RR IK IKK TOK IR IT RE OR IR RIE IOI OK 17 30(b)6 DEPOSITION OF: FRANCIS AQUADRO 18 ALEKMAN DiTUSA 19 1550 Main Street 20 Springfield, Massachusetts 21 July 19, 2017 9:12 a.m. 22 23 LISA A. REGENSBURGER 24 COURT REPORTER CATUOGNO COURT REPORTING & STEN-TEL TRANSCRIPTION Springfield, MA Worcester, MA Boston, MA Providence,RI ova Francis Aquadro 142 7/19/2017 Q. Do you know where that plywood came from? A. No, I don't. It's another vendor, another contractor. Q.- But you do not know which one? A. No. Q. Other than Manafort, do you recall which other subcontractors were working in the area at the time? 10 A. There was T&M, who was doing site 11 work. There was a company installing the visual 12 panels along the face of the wall. 13 Q. Do you recall who that was? 14 A. I don't know who that was. I didn't 15 have a direct relationship with them. Solr 16 don't know who that was. 17 There was the -- I think Armani was 18 doing the damp proofing for the elevator shaft, 19 who was there. 20 Q. Anything else? 21 A. You had an electrician. You had a 22 plumber. They were working in the vicinity. 23 Q. Okay. I'm going to show you a copy 24 of a photograph that was produced by Aquadro & CATUOGNO COURT REPORTING & STEN-TEL TRANSCRIPTION Springfield, MA Worcester, MA Boston, MA Providence, RI EXHIBIT 4 a4 COMMONWEALTH OF MASSACHUSETTS Hampshire, ss. Superior Court Department of the Trial Court Civil Action No. 1680CV00167 DAVID A. WOODS, Plaintiff vs. AQUADRO & CERRUTI, INC., Defendant and 10 DANIEL O'CONNELL'S SONS, INC., Defendant and Third-Party Plaintiff 11 vs. 12 MANAFORT PRECISION, LLC, 13 Third-Party Defendant 14 DEPOSITION OF: BENJAMIN DROUIN, taken before 15 Sarah L. Mubarek, Notary Public, pursuant to Rule 30 of the Massachusetts Rules of Civil Procedure, at 16 the offices of Morrison Mahoney LLP, 1500 Main Street, Suite 2400, Springfield, Massachusetts 17 01115, on November 30, 2017, commencing at 9:10 a.m. 18 19 20 21 Sarah L. Mubarek 22 Registered Professional Reporter 23 1 one 23 work where whatever the case may be, they ask a contractor to finish. So for instance, if Aquadro wasn't available, Rick Jackson would ask us to do it. Then they called in the concrete, they take care of the rebar. So we're just there to form it and place it. Q Do you recall what area of the project you were on at the time of Mr. Woods' accident on October 29, 2015? 10 A Yeah, we were at Al6, which is blueprint 12 talk, but blueprints are broken up by numbers and 12 letters. This specific pier footing that we were on 13 was Al6 on the blueprints. 14 Q So would you consider that to be part of 15 the Union Station site or the parking? 16 A It's the Union Station site. 17 Q So prior to that date, October 29, 2015, 18 you did not see any plywood unsecured on top of 19 rebar? 20 A. No. 21 Q And in October 2015, do you recall seeing 22 Aquadro & Cerruti working in the A16 area? 23 A I don't remember if it was E don't ae 1% 42 Q In other words, where the backfill is, do you know what this looked like the day prior to October 29th? A I do not, no. Q So when you and Dave arrived on th