Preview
4G.
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
HAMPSHIRE, ss. CIVIL ACTION NO. 1680CV00167
DAVID A. WOODS and KELLY WOODS,
Plaintiffs
Vv.
AQUADRO & CERRUTI, INC., DANIEL
O’CONNELL’S SONS, INC., and T&M
EQUIPMENT CORPORATION,
Defendants
and
DANIEL O’CONNELL’S SONS, INC.,
Third-Party Plaintiff
Vv.
MANAFORT PRECISION, LLC, and
T&M EQUIPMENT CORPORATION,
Third-Party Defendants
Ne SS SS SSS eee
MEMORANDUM IN SUPPORT OF DEFENDANT/THIRD-PARTY PLAINTIFF’S,
DANIEL O’CONNELL’S SONS, INC.’S, MOTION TO STRIKE REPORT OF
PLAINTIFFS’ PROPOSED EXPERT, DAVID GRAFTON, AND CERTAIN OF
PLAINTIFFS’ ADDITIONAL FACTS IN OPPOSITION TO DANIEL O° CONNELL?S
SONS, INC.’S MOTION FOR SUMMARY JUDGMENT
The defendant/third-party plaintiff, Daniel O'Connell’s Sons, Inc. (“DOC”), hereby
submits this memorandum in support of its motion to strike report of plaintiffs’ proposed expert,
David Grafton, and certain of plaintiffs’ additional facts in opposition to DOC’s motion for
summary judgment.
745263v.1RELEVANT FACTUAL BACKGROUND
On August 25, 2020, DOC served its motion for summary judgment together with a
statement of undisputed material facts, memorandum of law, addendum and exhibits on plaintiffs’
counsel.
On September 14, 2020, plaintiffs’ counsel served DOC with its disclosure of its proposed
construction safety expert, David Grafton.
Grafton’s report is dated March 31, 2020. However, plaintiffs’ counsel did not disclose
Grafton’s opinion until 3 weeks after DOC served its motion for summary judgment. (Joint
Appendix of Exhibits, Exhibit OO).
On October 1, 2020, plaintiffs’ counsel served the plaintiffs’ Rule 9A opposition papers on
DOC’s counsel. In their memorandum in opposition to DOC’s motion for summary judgment, the
plaintiffs assert nine pages of alleged additional “facts” and rely on Grafton’s opinion in an attempt
to create the appearance that there are material issues of fact that preclude summary judgment in
favor of DOC.
The plaintiffs’ alleged “facts” contain numerous falsehoods, statements taken out of
context, inappropriate conclusions of law, and are irrelevant to the issue to be decided on summary
judgment to deflect attention away from the fact that this entire case is based on a flawed “guess”
made by Manafort Precision's Safety Manager, Norm Depietri (“Depietri’), that a 4’ x 4’ x %"
piece of plywood was placed on a rebar cage adjacent to Manafort’s job site atsome unknown date
and time; that the 35 pound piece of plywood was lifted in the air by a sudden un-forecast gust of
wind which caused the plywood to fly forward 10 feet and strike the plaintiff, David Woods
(“Woods”), while he was exiting a form box. Depietri assumed that all of this occurred despite
the fact that Ben Drouin (“Drouin”), Woods’ supervisor, was standing within feet of Woods and
745263v.1the rebar cage and never saw the 35 Ibs. 4-by-4 piece of plywood on the rebar, in the air, striking
Woods, or landing.
The plaintiffs’ proposed expert, Grafton, proffers an opinion which is pure conjecture and
speculation based entirely on Depietri’s “guess.”
This Court should strike Grafton’s report and certain of plaintiffs’ additional “facts” in
opposition to DOC’s motion for summary judgment for the reasons set forth below:
ARGUMENT
I This Court Should Strike the Report of Plaintiffs’ Proposed Expert in Opposition to
Because it Was Disclosed Late, Is Based on Speculation and Contains Conclusions of
Law,
A. Striking the Expert Report is an Appropriate Sanction for Late Disclosure:
A judge is well within his discretion in sanctioning plaintiffs by excluding expert reports
filed in opposition to a motion for summary judgment where the plaintiffs did not produce the
expert report or disclose an expert until months after they receive an expert’s report and not until
they were required to file responses to the defendant’s motion for summary judgment. Grassi
Design Group, Inc. v. Bank of America, N.A.,74 Mass. App. Ct. 456, 459-60 (2009). (citing Mass.
R. Civ. P. 26(e)(1), 365 Mass. 776 (1974) requiring party “seasonably to supplement his response”
with respect to “the identity of each person expected to be called as an expert witness”). The
rationale for imposing this sanction is that the tardy disclosure ofan expert’s opinion may prejudice
the defendant since the late disclosure of a known expert allows the plaintiffs an opportunity to
fashion the expert’s opinion in response to the defendant’s summary judgment motion. Jd. at 460.
In this instance, Grafton’s report regarding liability is dated March 31, 2020. However,
plaintiffs’ counsel did not supplement its answers to expert interrogatories in a timely fashion by
disclosing Grafton to the defendants. Instead, plaintiffs’ counsel waited until September 14, 2020,
three weeks after DOC served its motion for summary judgment, to respond to DOC’s expert
3
748 263.1interrogatories and disclose Grafton as a liability expert. Plaintiffs’ counsel then used Grafton’s
report as the primary basis for its opposition to DOC’s motion for summary judgment in a blatant
attempt to create the appearance of issues of fact. This conduct warrants the sanction of striking
the plaintiffs’ use of Grafton’s report to defeat summary judgment at the last moment while still
allowing the plaintiffs the potential to use their expert report if the claims against DOC are not
resolved on summary judgment.
B. The Report is Based on Speculation and Unverified Assumptions and
Contains Conclusions of Law.
In addition to the foregoing, a judge may properly exclude an expert report submitted with
respect to a motion for summary judgment where a report contains legal conclusions, speculation
based on unverified assumptions and irrelevant assertions. Grassi Design Group, Inc., supra at
461-62.
“Expert opinion testimony may be excluded where it amounts to no more than mere
speculation or a guess from subordinate facts that do not give adequate support to the conclusion
reached.” id. (internal quotations omitted). Expert opinion cannot be based on speculation,
conclusory allegations, or assumptions not based on the record. See Booth v. Silva, 36 Mass. App.
Ct. 16, 20 (1994); AfeCarthy v. Hauck, 15 Mass. App. Ct. 603, 609-10 (1983). Expert testimony
must be predicated on facts that are legally sufficient to provide a basis for the expert’s opinion.
Schuber v. Nissan Motor Corp., 148 F.3d 25, 30 (1* Cir. 1998).
In its opposition to DOC’s motion for summary judgment, the plaintiffs themselves
concede that the facts of record most favorable to them are simply that Woods was hit by “an
object that came from the west as [Woods’] and Drouin’s backs were turned...” (Plaintiffs’
Opposition Memo at p. 16).
745263v.1Grafton’s report is fatally flawed because Grafton prepared his report at the request of
plaintiffs’ counsel who “asked [him] to provide an opinion with respect to the incident wherein
David Wood (sic.) was struck by a piece of 4’x 4’ x4” plywood on the construction site.” (Exhibit
OO at Exhibit A, page 1 and Exhibit OO, Grafton’s Affidavit at J1). His entire opinion is based
on an assumption that Woods was hit by the 4-by-4 plywood despite the fact that there is no
evidence of record to support this assumption. Grafton further bases his opinion on his
“understanding that ... [DOC] was the General Prime Contractor having overall responsibility for
the means, methods, control and safety and health over any and all subcontractors...” (Exhibit
OO at Exhibit A, page 2). This is an inappropriate conclusion of law to be determined by the fact
finder. Grafton then goes on to render an opinion “[i]f this unsecured piece of plywood had
been placed on top of rebar at the adjacent ... job site by ... [some] subcontractor, to either
act as a flat workstation or to provide unsecured protection from rebar impalement
hazard...” (Exhibit OO at Exhibit A at p. 2) (emphasis added). Grafton bases his opinion on
Depietri’s report despite the fact that Depietri conceded at his deposition that his theory of how
the accident occurred was a pure “guess.” (Exhibit OO at Exhibit A at pp. 2-3), Grafton assumes
that DOC moved the plywood based on a statement made by Depietri despite the fact that Depietri
admitted at his deposition that he has no knowledge that any person ever moved or touched the
plywood, (Exhibit OO at Exhibit A at pp. 3). Moreover, Grafton undermines his own opinion by
noting that the allegedly hazardous condition was “in plain view” of all subcontractors, including
Manafort, Woods and Drouin. (Exhibit OO at Exhibit A at p. 3). Grafton also bases his opinion
on the premise that there was a “forecasted unsafe condition of the climate that day.” (Exhibit OO
at Exhibit A at p. 5). This is in direct contradiction to the certified weather records, deposition
748263v.1testimony of DOC, Depietri, Drouin, Wurszt and Woods. In fact, there is no evidence from any
source that there was an unsafe weather forecast and Grafton cites no authority for his assumption.
In light of the foregoing, this Court should strike Grafton’s report in opposition to DOC’s
motion for summary judgment.
Il. This Court Should Strike Certain of Plaintiffs’ Statements of Facts and Exhibits and
in Support of Plaintiffs’ Opposition to DOC’s Motion for Summary Judgment Which
Are_ Immaterial, Irrelevant, Unsupported by Evidence _of Record and/or
Inappropriate Conclusion of Law.
In considering a motion for summary judgment, the court may only consider pleadings,
depositions, answers to interrogatories, admissions on file, and affidavits which would be
admissible in evidence at trial. Community National Bank v. Dawes, 369 Mass. 550, 553 (1976),
Mass. R. Civ. P. 56(c). See Glaz v. Ralston Purina Co., 24 Mass. App. Ct. 386, 387 (1987) (judge
properly disregarded deposition excerpts that were conclusory in nature and based on hearsay);
Madsen v. Erwin, 395 Mass. 715, 721 (1985).
“Rule 9A(b)(5) is an ‘anti-ferreting’ rule designed to assist a trial judge in the all-too
typical situation in which the parties throw a foot-high mass of undifferentiated material at the
judge.” Dziamba v. Warner & Stackpole, LLP, 56 Mass. App. Ct. 397,399 (2002). “Adoption of
an anti-ferreting rule is an appropriate exercise by a trial court in case management discretion. It
is a pragmatic and reasonable response to the propensity of lawyers to file literally mounds of
affidavits, depositions, interrogatories, and depositions in support of, or in opposition to, summary
judgment.” Jd. at 401.
Where the plaintiffs responses to a defendant’s statement of facts do not comply even
minimally with Rule 9A(b)(5) making it unnecessarily and unreasonably difficult for the motion
judge to identify which facts are genuinely in dispute, the motion judge may apply the “anti-
ferreting” rule set forth in Dziamba and strike the non-moving party’s responses and deem all of
745263v.1the defendant’s statements of fact as admitted for purposes of summary judgment. Burke v.
Digitas, LLC, No. 14-P-1344, 88 Mass. App. Ct. 1102, *2 (Aug. 24, 2015) (unpublished table
decision).
This Court should strike the following of plaintiffs’ factual allegations in their opposition
memorandum and plaintiffs’ cited exhibits:
1.
745263v.1
“Neither Woods nor Drouin took notice of the other subcontractors’ site next to
MP’s as they were working at Al6. (Exhibit J, p. 42:5-15, 46:17-47:4, 80:2-5;
Exhibit E, p. 88:9-19, 89:13-15, 115:19-24),” (Plaintiffs’ Memo at p. 2 and p. 3).
This statement is false and is not supported by the undisputed facts of record.
Woods admitted he could see the rebar cage from where he was working at
A16 as it was within 6 feet of the form work being done by Manafort. Woods
admitted that he walked around the A16 site which was adjacent to the rebar
cage. He maintains that he has no memory of seeing the subject plywood at
any time either at the A16 site or on or near the subject rebar cage. Woods
maintains he does not know what hit him or where the object came from.
(CSOF #s 60-61, 63, 80, 88, 95-96 and 98).
Drouin testified that he could see the rebar cage while working on Al6. He
has no memory of seeing the subject plywood prior to the incident. Drouin did
not see the object that hit Woods. He does not know what hit Woods or where
it came from. In fact, Drouin testified that he never saw a piece of plywood on
top of a rebar cage on the Union Station site at any time. (Exhibit J, Drouin
Depo. at pp. 74-75 and 80).
Depietri testified that Woods and Drouin would have seen the plywood if it
were on top of the rebar prior to Woods’ accident because, “It’s right near
them. So you look around, you see things, it’s brought to your attention.”
(Exhibit K, Depietri Depo. at p. 57).
“The exposed rebar was considered an impalement hazard by both A& C and T &
M requiring capping or other approved secure hazard prevention whether it was 10
feet or 3 feet above grade. (Exhibit L, p. 98:10-99:9, 129:15-24, Exhibit O, p.
213:13-20).” (Plaintiffs’ Memo at p. 3).
This statement is false and is not supported by the undisputed facts of record.
Francis Aquadro was never questioned about protection of rebar 10 feet above
grade and he never testified about such a condition. (See Exhibit L). Mr.
Aquadro testified that he never saw a piece of plywood on top of the rebar cage
at any time prior to Woods’ accident. Mr. Aquadro responded to a
hypothetical question that if he had seen unsecured rebar on top of a rebar
\cage 3 feet above grade, he would replace the plywood with rebar caps.
(Exhibit L, Aquadro Depo. at pp. 98-99 and 129). T&M’s 30(b)(6) designee,
Amy Chagnon, did not testify that a rebar cage of any height would be a
potential impalement hazard. Ms. Chagnon testified that, in her opinion, a
rebar cage that was 10.5 feet above grade should be capped. When asked
“why?” she replied, “I don’t know.” (Exhibit O, Chagnon Depo. at p. 213).
“There was no contractual or statutory obligation required of MP or its employees
to conduct inspection of the job sites or work of other subcontractors. (Plaintiff's
Addendum, Items 1-4).” (Plaintiffs’ Memo at p. 3).
This statement is false and is not supported by the undisputed facts of record.
Moreover, the statement consists of an inappropriate conclusion of law. Items
1-4 of the plaintiffs’ addendum do not concern Manafort’s contractual
obligation on the Union Station Job site.’ Under DOC’s subcontract with
Manafort, Manafort was required to comply with its Site Specific Safety Plan
(SSSP). (DOC’s Addendum at p. 8 and Exhibit C at Article 8.5(D)).
Manafort’s SSSP expressly provides that Manafort’s Project Manager “is the
communication link between [DOC] ... and other subcontractors ... who may
be exposing [Manafort] employees to unsafe acts or conditions. In this case,
[Manafort’s] Project Manager must notify DOC and ensure that corrective
action_is_taken to eliminate the hazard(s), ultimately ensuring a safe
environment for [Manafort’s] employees.” In addition, the SSSP expressly
requires Manafort’s field employees to “[iJnform [Manafort’s]
foremen/supervisor of any concerns about the safety of work activities.”
(DOC’s Addendum at p. 9 and Exhibit H, Manafort’s SSSP).
Drouin conceded that if he had seen a piece of plywood on top of the rebar
cage he would have taken it down. Drouin testified that it did not matter if the
plywood was on Manafort’s site or another site, ... “[i]t could be ten feet, five
feet. Doesn’t matter.” If he saw the condition, he would “absolutely not” work
near it. (Exhibit J, Drouin Depo. at p. 95),
“The only thing behind the Plaintiff was the adjacent job site. (Exhibit J, at p. 81:9-
16).” (Plaintiffs’ Memo at p. 4).
This statement is false and is not supported by the undisputed facts of record.
It is undisputed that the Union Station project site was large and involved
multiple subcontractors working on projects at any given time. Photographs
of the A16 site, the adjacent site with the subject rebar cage and the
surrounding area marked at the depositions of Mr. Aquadro, Drouin, Depietri,
and Woods all show an extensive area behind the subject rebar cage and
1
Items 1-4 of plaintiffs’ addendum contain excerpts from DOC’s contract with the Springfield Redevelopment
Authority, DOC’s subcontract with Aquadro & Cerruti, DOC’s subcontract with T&M Equipment; and DOC’s
Internal Site Specific Safety Plan.
745263v.1745263v.1
surrounding the rebar cage. In addition, a wall is depicted near the A16 site.
These photographs depict numerous construction materials - many of which
were Manafort’s. (See Exhibits Q, R, W, and GG). Drouin testified at his
deposition that, although not shown in the photographs, there were 40-60
workers west of A16 and there was wall to the north. (Exhibit J, Drouin Depo.
at p. 41). Drouin further testified that, at the time of Woods’ accident,
Depietri called him and told him that he saw debris flying off the roof of a
building on the project. Drouin testified that Manafort had insulation on the
roof and that Depietri observed the insulation coming off the roof. Drouin
testified, “That’s why he told me to secure our materials.” (Exhibit J, Drouin
Depo. at p. 68 and photographs). Timothy Harvey, Manafort’s Rule 30(b)(6)
designee identified pieces of plywood similar to the plywood that allegedly
struck Woods, on the roof of a building on the job site. (Exhibit CC, Harvey
Depo. at p. 102 and Exhibit QQ, Photograph}. Depietri testified that he
observed materials being used by Manafort and other subcontractors on the
site including plywood and 2-by-4s. (Exhibit K, Depietri Depo. at p. 68).
“Drouin heard a sound and saw the Plaintiff's hard hat and glasses go flying.
(CSOF 68). He saw the Plaintiff fall to the ground. (Id.) He then saw a piece of
plywood inside the newly constructed form that had not previously been at Al6.
(Exhibit J, p. 49:15-17, 52:14-20).” (Plaintiff's Memo at p. 4).
This statement is false and is not supported by the undisputed facts of record.
Drouin testified that he heard something hit the side of the Symons form and
“fall back over.” He testified that he “heard” the object but did not see it. He
does not know where the object landed. (Exhibit J, Drouin Depo. at pp. 49 and
70).
“Almost immediately after the Plaintiff had fallen and plywood appeared inside the
form, Drouin’s phone rang. (CSOF §71).” (Plaintiffs* Memo at p. 4).
This statement is false, misleading and is not supported by the undisputed facts
of record. Depietri called Drouin a few minutes after the accident and asked
Drouin to secure Manafort’s loose materials on the site. Drouin testified that
he did not see the object that hit Woods. He also testified that he does not
know where the object ianded after it hit Woods. Drouin has no memory of
seeing a piece of plywood land inside the form box. (Exhibit J, Drouin Depo.
at pp. 49, 52 and 70).
“Depietri went to Al6 and took photographs of the site, including the plywood
resting inside the newly constructed pier box form; he placed his yellow field book
on top of the plywood for scale. (Exhibit K, p. 45:10-22, 59:6-7).” (Plaintiffs’
Memo at p. 4). :
This statement is false and is not supported by the undisputed facts of record.
Depietri testified that he went to the A16 site to take photographs. He testified745263v.1
that he saw the plywood “near the forms that Dave and Ben were putting
together.” He does not remember whether he saw the plywood “inside the
forms.” He also saw the rebar cage approximately 6-8 feet away from the
form. While he was at the scene, Drouin told him that Woods was hit by a
“piece of wood.” (Exhibit K, Depietri Depo. at pp. 44-47). Depietri does not
know how the piece of plywood in his photograph ended up underneath the
banding on the ground inside the form box. (Exhibit K, Depietri Depo. at p.
63).
After taking aerial photographs of the scene, Depietri “observed photos in which
three (3) DOC employees were moving the plywood from A16; he identified them
by their hard hats and vests. (Exhibit K, p. 50:13-17; 52:5-11; 54:10-23).”
(Plaintiffs’ Memo at p. 5).
This statement is false, misleading and is not supported by the undisputed facts
of record. Initially, Depietri testified that he recalled seeing photographs
which he took that showed “people” from DOC moving a piece of plywood.
(Exhibit K, Depietri Depo. at p. 50). Drouin and Depietri went back to the A16
area and observed 3 DOC employees investigating the incident. (Exhibit K,
Depietri Depo. at p. 52). Depietri later recanted his testimony as follows:
Q. Did you actually see any person pick up the
plywood and move it?
A. No.
Q. Do you have any photographs showing any person
picking up the plywood and moving it?
A. I don’t believe so.
(Exhibit K, Depietri Depo. at pp. 90-91).
Depietri “approached them and asked them why they had moved the plywood, but
they denied doing so, despite the photographs. (Exhibit K, p. 49:21:-50:1).”
(Plaintiffs’ Memo at p. 5).
This statement is misleading and is not supported by the undisputed facts of
record, Initially, Depietri testified that he asked the 3 individuals from DOC
if they moved the plywood. He testified that these individuals denied moving
the plywood. Depietri then said, “this picture shows you guys moving it.” The
individuals from DOC stated that they did not move anything. (Exhibit K,
Depietri Depo. at p. 54). As stated above, Depietri later admitted that he never
saw anyone move the plywood and he did not take any photographs which
showed anyone moving the plywood. (Exhibit K, Depietri Depo. at pp. 90-91).
1010.
ll.
12.
745263y.1
“Depietri did not report or speak to DOC about this event, including Andrew
Wurszt, ... as that was not Depietri’s position to do so. (Exhibit K, p. 43:5-54:23).”
(Plaintiffs Memo at p. 5).
This statement is false and is not supported by the undisputed facts of record.
Drouin conceded that he spoke with Wurszt on the day of the accident after
the accident occurred. (Exhibit J, Drouin Depo. at pp. 55-56). At his
deposition, Depietri testified that he and Drouin “spoke to Dan O’Connell’s
staff. Who they were, I think it was a superintendent and whoever was with
them.” (Exhibit kK, Depietri Depo. at p. 48). Depietri claimed that it was
Drouin’s responsibility to report the incident to DOC. (Exhibit K, Depietri
Depo. at p. 53). Wurszt testified that he spoke with both Drouin and Depietri
on the day of the accident. (Exhibit I, Wurszt Depo. at p. 14). Depietri told
Wurszt his theory of what may have happened to Woods. (Exhibit I, Wurszt
Depo. at pp. 15-16),
“On the day of the event, Wurszt, prepared an ‘Incident Analysis Report of Daniel
O'Connell's Sons, Inc.” which concluded that the “Plaintiff had been struck by a
piece of plywood which originated from the top of a rebar cage at the site adjacent
to MP's. (Exhibit [I).” (Plaintiffs’ Memo at p. 5).
This statement is misleading and is not supported by the undisputed facts of
record. . Wurszt testified that Drouin called him from his cell phone
immediately after the accident and told him that “his coworker was struck by
something.” Wurszt went to the site and spoke with Drouin and Depietri.
When Wurszt arrived at the scene, he saw the subject piece of plywood lying
outside the form lying flat on the ground above the form area. Drouin and
Depietri told Wurszt there was a gust of wind and Woods was struck “with a
piece of plywood or something.” Depietri had come to the conelusion that the
“piece of plywood was on or against the rebar cage in the corner of the parking
garage. That’s what I based my incident report on.” Drouin simply stated
that he thought Woods had been hit by a piece of plywood. (Exhibit I, Wurszt
Depo. at pp. 12-19 and Ex. 4 photograph). Wurszt assumed that Depietri’s
theory was true so he placed the piece of plywood on top of the rebar cage and
took a photograph of it as part of his report. (Exhibit I, Wurszt Depo. at p.
18).
“Drouin then prepared an ‘Incident Investigation Report of Manafort Brothers’
dated November 3, 2015, which contained the same information.” (Exhibit KK).
(Plaintiffs” Memo at p. 5).
This statement is misleading and is not supported by the undisputed facts of
record. Drouin conceded that he wrote this report despite the fact that he
never saw the subject plywood either in the area of A16 or on top of the rebar
prior to Woods’ accident. (Exhibit J, Drouin Depo. at pp. 42, 64, 88).
11745263v.1
13.
14,
15.
“Depietri also prepared a Report containing that information dated November 4,
2015. (Exhibit LL).” (Plaintiffs’ Memo at p. 5).
This statement is misleading and is not supported by the undisputed facts of
record. It is undisputed that Depietri prepared this report. However, Depietri
prepared the report based on a pure guess of how the accident occurred.
Depietri admits he has no personal knowledge that the plywood was on top of
the rebar; he simply guessed that someone put it on top of the rebar; and he
made the further assumption that the plywood belonged to Aquadro &
Cerruti. (Exhibit K, Depietri Depo. at pp. 51, 56, 66 and 120).
“Nathan Clinard, the M.R.C.P. Rule 30(b)(6) deponent for DOC, testified that
DOC's internal investigation established that "the plywood in question ...was
protecting an impalement hazard in the vicinity of Manafort’s work area." (Exhibit
MM, Errata Sheet dated August 28, 2017, correcting p. 178:10-14 of Vol. I of
Clinard testimony of July 13, 2017).” (Plaintiffs’ Memo at p. 5).
This statement is misleading and is not supported by the undisputed facts of
record. There is no dispute that Mr. Clinard so testified at his deposition on
July 13, 2017. However, when he was later deposed on September 22, 2017,
after additional discovery in the case, Mr. Clinard testified that, after further
investigation, it was determined that the rebar cage was not an impalement
hazard until after T&M finished backfilling the site on October 28, 2015 as the
rebar was approximately 10 feet above grade prior to that time. (Exhibit RR,
Clinard Depo., Vol. II at pp. 82-83 and 89-92). As set forth above, DOC’s
incident report was based entirely on what Manafort’s Safety Manager,
Depietri, reported to Wurszt. After further discovery in this case, it was
determined that Depietri’s report was based on a pure guess of what ocenrred.
“The weather at the Union Station project on the morning of October 29, 2015
included consistent high winds and gusts; within the three (3) hours prior to the
subject event, the wind speed was betweeri 17 and 31 mph, and there were multiple
gusts of between 25 and 44 mph. (Exhibit FF).” (Plaintiffs’ Memo at p. 6).
This statement is misleading and is not supported by the undisputed facts of
record. There is no evidence of a high wind advisory, or any other weather
advisory on the date of the accident. Drouin used a weather app and noted
nothing of concern. He first noted that the wind began to pick up between 1:30
p.m. and 1:45 p.m. (Exhibit J, Drouin Depo. at pp. 31-33 and 45). Manafort’s
Safety Director, Depietri, did not instruct Drouin to secure its materials due
to windy conditions until after Woods’ accident. (Exhibit J, Drouin Depo. at
p. §2 and Exhibit K, Depietri Depo. at pp. 37-38). The plaintiffs admit that
certified weather records show wind gusts: 39 mph at 12:43 p.m.; 32 mph at
12:58 p.m.; and 24 mph at 1:58 p.m. (Exhibit FF, Certified Weather Records).
1216.
17.
18.
745263v.1
“Jackson "was through” the A &C/T&M area adjacent to Al6 at least three (3)
times on October 29, 2015 before the Plaintiff was injured. (Exhibit M, p.60:5-
61:6.) If he noticed plywood on top of the exposed rebar, he wouldn't have focused
on it because he would have accepted the condition as "nonbazardous”. (Exhibit M,
p.55:23-58:4; p.60:5-61:23).” (Plaintiffs’ Memo at p. 6).
This statement is misleading and is irrelevant to the issue to be decided on
summary judgment. Jackson testified that he walked through the job site
several times prior to 2:00 p.m. Jackson did not observe any plywocd on top
of the rebar cage. Jackson stated that the rebar would not have been an
impalement hazard until after the area had been backfilled since the area
would have been at least 7 feet above grade prior to backfilling. Jackson
further stated that he would not necessarily consider placing a 35 pound piece
of plywood on top ofa 3 foot high rebar cage to be hazardous because it would
“a little bit beyond normal” for a gust of unpredicted wind to lift a 35 pound
piece of plywood and cause it “to fly” forward into an adjacent worksite.
(Exhibit M, Jackson Depo. at pp. 72, 77-81).
“DOC cannot delegate the responsibility to provide a safe work environment to
anyone on the Union Station project. (Exhibit M, p. 18:21-19:12).” (Plaintiffs*
Memo at p. 6).
This statement is an inappropriate conclusion of law to be decided by the court
based on the undisputed facts of record.
The "Owner — Construction Manager Agreement" entered into between the
Springfield Redevelopment Authority and DOC required DOC, as the Construction
Manager, to " be responsible for managing, coordinating, and supervising all
aspects of the work" at the Union Station project, including reviewing, monitoring,
implementing, enforcing, and coordinating the quality of the work of all
subcontractors in "all aspects of the work” at section 5.2.4. (Sce Joint Appendix
Exhibit B, Plaintiffs Addendum, Item 1.) (Plaintiffs’ Memo at p. 7).
This statement is misleading, is taken out of context and is not relevant to the
issue to be decided on summary judgment. The plaintiffs site a provision of
the Owner - Construction Manager Agreement which deals with the “quality”
of subcontractor’s work, not the safety of the jobsite. The provision cited by
the plaintiffs provides, in part, that DOC is “responsible for insuring that
adequate quality control programs are developed, implemented and enforced
by [DOC’s] staff and all Subcontractors....” (Exhibit B, at Article 5.2.4).
Significantly, the plaintiffs fail to cite any provision in the Owner —
Construction Manager Agreement which provides that DOC has the authority
to control a subcontractor’s means, methods, techniques, and procedures in
perforraing its work on the job site.. That is because there is no such provision.
(See Exhibit B).
13745263v.1
19.
At sections 8.5 (C), (D) and (L) of the Subcontract Agreement (Joint Appendix
Exhibit A, Plaintiffs Addendum, Items 2 and 3), DOC retained the right to direct
and dictate "all safety initiatives” to the subcontractor provided that same fell within
the boundaries and intent of State and OSHA regulations, and/or the DOC SSSP.
All storage of materials by a subcontractor was with the approval and permit of
DOC as specified in section 8.10. In addition, in section 8.17 DOC retained the
tight to identify and remove improperly stored material or waste from a
subcontractor’s work area, with a backcharge to the subcontractor if same was not
removed upon 24 hour notice to the subcontractor by DOC. Further, in section 9.2
DOC retained the right to give instructions and orders as to the performance of the
work by the employees of the subcontractor through persons designated as the
authorized representatives of the subcontractor.” (Plaintiffs’ Memo at p. 8).
This statement is inaccurate, misleading and irrelevant. Plaintiffs cite DOC’s
subcontract with Aquadro & Cerruti which is not relevant to plaintiffs’ claims
against DOC. There is no evidence that Aquadro & Cerruti improperly stored
materials or violated any OSHA provision. (See Exhibit A). Significantly, the
plaintiffs’ fail to site the relevant contract at issue, namely, the Subcontract
Agreement between DOC and Manafort which expressly states that Manafort
must “furnish -all labor and supervision; furnish, supply and install all
equipment, supplies, tools, scaffolding, hoisting, transportation, unloading and
handling; do all things required to complete the Work....” (Exhibit C at
Article 1.2 and DOC’s Addendum at p. 8). The contract also provides that
Manafort must submit and follow its own site specific safety plan. (Exhibit C
at Article 8.5(D) and DOC’s Addendumat p. 8). Manafort’s site specific safety
plan expressly provides that Manafort’s “Superintendent is responsible for the
overall safety and health practices and conditions on the site.....” (Exhibit H
and DOC’s Addendum at p. 9).
14CONCLUSION
In light of the foregoing, DOC respectfully request that this Honorable Court strike the
report of the plaintiffs’ proposed expert, David Grafton, and the plaintiffs’ statements of additional
material facts set forth above.
745263v.1
The Defendant,
DANIEL O’CONNELL’S SONS, INC.
By Its Attorneys,
15
John G. Bagley, BBO #026050
jbagley@morrisonmahoney.com
Denise M. Tremblay, BBO #561238
dtremblay@morrisonmahoney.com
MORRISON MAHONEY LLP
1500 Main Street, Suite 2400
Post Office Box 15387
Springfield, MA 01115-5387
Phone: 413-737-4373
Fax: 413-739-3125CERTIFICATE OF SERVICE
I, Denise M. Tremblay, attorney for defendant/third-party plaintiff, Daniel O’Connell’s
Sons, Inc., hereby certify that I have this day served the foregoing MEMORANDUM IN SUPPORT
OF DEFENDANT/THIRD-PARTY PLAINTIFF'S, DANIEL O’CONNELL'S SONS, INC.’S,
MOTION TO STRIKE REPORT OF PLAINTIFFS' PROPOSED EXPERT, DAVID GRAFTON,
AND CERTAIN OF PLAINTIFFS’ ADDITIONAL FACTS IN OPPOSITION TO DANIEL
O'CONNELL’S SONS, INC.’S MOTION FOR SUMMARY JUDGMENT to all counsel of record
in this action by serving same via email to:
Robert A. DiTusa, Esq. Thomas P. Schuler, Esq.
fobert@alekmanditusa.com tschuler@travelers.com
Laura D. Mangini, Esq. Law Offices of Steven B. Stein
laura@alekmanditusa.com P.O. Box 2903
Lee Dawn Daniel, Esq. Hartford CT 06104-2903
lee@alekmanditusa.com
Alekman DiTusa, LLC
1550 Main Street, Suite 401
Springfield, MA 01103
Patricia M. Vachereau, Esq. Jonathan A. Barnes, Esq.
atricia, vachereau@libertymutual.com jbames@chelaw.com .
Cain, Sherry, Geller & Vachereau William A. Ahern, Jr., Esq.
1 Federal Street, Building 111-4 wahern@chelaw.com
Springfield, MA 01105 Gregg, Hunt, Ahern & Embry
One Cranberry Hill, Suite 304
Lexington MA 02421
Danie 777. Toe ~Lay
Dated: October 9, 2020 Attomey:
Denise M. Tremblay
16
745263v.1
Preview
4G. COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT HAMPSHIRE, ss. CIVIL ACTION NO. 1680CV00167 DAVID A. WOODS and KELLY WOODS, Plaintiffs Vv. AQUADRO & CERRUTI, INC., DANIEL O’CONNELL’S SONS, INC., and T&M EQUIPMENT CORPORATION, Defendants and DANIEL O’CONNELL’S SONS, INC., Third-Party Plaintiff Vv. MANAFORT PRECISION, LLC, and T&M EQUIPMENT CORPORATION, Third-Party Defendants Ne SS SS SSS eee MEMORANDUM IN SUPPORT OF DEFENDANT/THIRD-PARTY PLAINTIFF’S, DANIEL O’CONNELL’S SONS, INC.’S, MOTION TO STRIKE REPORT OF PLAINTIFFS’ PROPOSED EXPERT, DAVID GRAFTON, AND CERTAIN OF PLAINTIFFS’ ADDITIONAL FACTS IN OPPOSITION TO DANIEL O° CONNELL?S SONS, INC.’S MOTION FOR SUMMARY JUDGMENT The defendant/third-party plaintiff, Daniel O'Connell’s Sons, Inc. (“DOC”), hereby submits this memorandum in support of its motion to strike report of plaintiffs’ proposed expert, David Grafton, and certain of plaintiffs’ additional facts in opposition to DOC’s motion for summary judgment. 745263v.1RELEVANT FACTUAL BACKGROUND On August 25, 2020, DOC served its motion for summary judgment together with a statement of undisputed material facts, memorandum of law, addendum and exhibits on plaintiffs’ counsel. On September 14, 2020, plaintiffs’ counsel served DOC with its disclosure of its proposed construction safety expert, David Grafton. Grafton’s report is dated March 31, 2020. However, plaintiffs’ counsel did not disclose Grafton’s opinion until 3 weeks after DOC served its motion for summary judgment. (Joint Appendix of Exhibits, Exhibit OO). On October 1, 2020, plaintiffs’ counsel served the plaintiffs’ Rule 9A opposition papers on DOC’s counsel. In their memorandum in opposition to DOC’s motion for summary judgment, the plaintiffs assert nine pages of alleged additional “facts” and rely on Grafton’s opinion in an attempt to create the appearance that there are material issues of fact that preclude summary judgment in favor of DOC. The plaintiffs’ alleged “facts” contain numerous falsehoods, statements taken out of context, inappropriate conclusions of law, and are irrelevant to the issue to be decided on summary judgment to deflect attention away from the fact that this entire case is based on a flawed “guess” made by Manafort Precision's Safety Manager, Norm Depietri (“Depietri’), that a 4’ x 4’ x %" piece of plywood was placed on a rebar cage adjacent to Manafort’s job site atsome unknown date and time; that the 35 pound piece of plywood was lifted in the air by a sudden un-forecast gust of wind which caused the plywood to fly forward 10 feet and strike the plaintiff, David Woods (“Woods”), while he was exiting a form box. Depietri assumed that all of this occurred despite the fact that Ben Drouin (“Drouin”), Woods’ supervisor, was standing within feet of Woods and 745263v.1the rebar cage and never saw the 35 Ibs. 4-by-4 piece of plywood on the rebar, in the air, striking Woods, or landing. The plaintiffs’ proposed expert, Grafton, proffers an opinion which is pure conjecture and speculation based entirely on Depietri’s “guess.” This Court should strike Grafton’s report and certain of plaintiffs’ additional “facts” in opposition to DOC’s motion for summary judgment for the reasons set forth below: ARGUMENT I This Court Should Strike the Report of Plaintiffs’ Proposed Expert in Opposition to Because it Was Disclosed Late, Is Based on Speculation and Contains Conclusions of Law, A. Striking the Expert Report is an Appropriate Sanction for Late Disclosure: A judge is well within his discretion in sanctioning plaintiffs by excluding expert reports filed in opposition to a motion for summary judgment where the plaintiffs did not produce the expert report or disclose an expert until months after they receive an expert’s report and not until they were required to file responses to the defendant’s motion for summary judgment. Grassi Design Group, Inc. v. Bank of America, N.A.,74 Mass. App. Ct. 456, 459-60 (2009). (citing Mass. R. Civ. P. 26(e)(1), 365 Mass. 776 (1974) requiring party “seasonably to supplement his response” with respect to “the identity of each person expected to be called as an expert witness”). The rationale for imposing this sanction is that the tardy disclosure ofan expert’s opinion may prejudice the defendant since the late disclosure of a known expert allows the plaintiffs an opportunity to fashion the expert’s opinion in response to the defendant’s summary judgment motion. Jd. at 460. In this instance, Grafton’s report regarding liability is dated March 31, 2020. However, plaintiffs’ counsel did not supplement its answers to expert interrogatories in a timely fashion by disclosing Grafton to the defendants. Instead, plaintiffs’ counsel waited until September 14, 2020, three weeks after DOC served its motion for summary judgment, to respond to DOC’s expert 3 748 263.1interrogatories and disclose Grafton as a liability expert. Plaintiffs’ counsel then used Grafton’s report as the primary basis for its opposition to DOC’s motion for summary judgment in a blatant attempt to create the appearance of issues of fact. This conduct warrants the sanction of striking the plaintiffs’ use of Grafton’s report to defeat summary judgment at the last moment while still allowing the plaintiffs the potential to use their expert report if the claims against DOC are not resolved on summary judgment. B. The Report is Based on Speculation and Unverified Assumptions and Contains Conclusions of Law. In addition to the foregoing, a judge may properly exclude an expert report submitted with respect to a motion for summary judgment where a report contains legal conclusions, speculation based on unverified assumptions and irrelevant assertions. Grassi Design Group, Inc., supra at 461-62. “Expert opinion testimony may be excluded where it amounts to no more than mere speculation or a guess from subordinate facts that do not give adequate support to the conclusion reached.” id. (internal quotations omitted). Expert opinion cannot be based on speculation, conclusory allegations, or assumptions not based on the record. See Booth v. Silva, 36 Mass. App. Ct. 16, 20 (1994); AfeCarthy v. Hauck, 15 Mass. App. Ct. 603, 609-10 (1983). Expert testimony must be predicated on facts that are legally sufficient to provide a basis for the expert’s opinion. Schuber v. Nissan Motor Corp., 148 F.3d 25, 30 (1* Cir. 1998). In its opposition to DOC’s motion for summary judgment, the plaintiffs themselves concede that the facts of record most favorable to them are simply that Woods was hit by “an object that came from the west as [Woods’] and Drouin’s backs were turned...” (Plaintiffs’ Opposition Memo at p. 16). 745263v.1Grafton’s report is fatally flawed because Grafton prepared his report at the request of plaintiffs’ counsel who “asked [him] to provide an opinion with respect to the incident wherein David Wood (sic.) was struck by a piece of 4’x 4’ x4” plywood on the construction site.” (Exhibit OO at Exhibit A, page 1 and Exhibit OO, Grafton’s Affidavit at J1). His entire opinion is based on an assumption that Woods was hit by the 4-by-4 plywood despite the fact that there is no evidence of record to support this assumption. Grafton further bases his opinion on his “understanding that ... [DOC] was the General Prime Contractor having overall responsibility for the means, methods, control and safety and health over any and all subcontractors...” (Exhibit OO at Exhibit A, page 2). This is an inappropriate conclusion of law to be determined by the fact finder. Grafton then goes on to render an opinion “[i]f this unsecured piece of plywood had been placed on top of rebar at the adjacent ... job site by ... [some] subcontractor, to either act as a flat workstation or to provide unsecured protection from rebar impalement hazard...” (Exhibit OO at Exhibit A at p. 2) (emphasis added). Grafton bases his opinion on Depietri’s report despite the fact that Depietri conceded at his deposition that his theory of how the accident occurred was a pure “guess.” (Exhibit OO at Exhibit A at pp. 2-3), Grafton assumes that DOC moved the plywood based on a statement made by Depietri despite the fact that Depietri admitted at his deposition that he has no knowledge that any person ever moved or touched the plywood, (Exhibit OO at Exhibit A at pp. 3). Moreover, Grafton undermines his own opinion by noting that the allegedly hazardous condition was “in plain view” of all subcontractors, including Manafort, Woods and Drouin. (Exhibit OO at Exhibit A at p. 3). Grafton also bases his opinion on the premise that there was a “forecasted unsafe condition of the climate that day.” (Exhibit OO at Exhibit A at p. 5). This is in direct contradiction to the certified weather records, deposition 748263v.1testimony of DOC, Depietri, Drouin, Wurszt and Woods. In fact, there is no evidence from any source that there was an unsafe weather forecast and Grafton cites no authority for his assumption. In light of the foregoing, this Court should strike Grafton’s report in opposition to DOC’s motion for summary judgment. Il. This Court Should Strike Certain of Plaintiffs’ Statements of Facts and Exhibits and in Support of Plaintiffs’ Opposition to DOC’s Motion for Summary Judgment Which Are_ Immaterial, Irrelevant, Unsupported by Evidence _of Record and/or Inappropriate Conclusion of Law. In considering a motion for summary judgment, the court may only consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits which would be admissible in evidence at trial. Community National Bank v. Dawes, 369 Mass. 550, 553 (1976), Mass. R. Civ. P. 56(c). See Glaz v. Ralston Purina Co., 24 Mass. App. Ct. 386, 387 (1987) (judge properly disregarded deposition excerpts that were conclusory in nature and based on hearsay); Madsen v. Erwin, 395 Mass. 715, 721 (1985). “Rule 9A(b)(5) is an ‘anti-ferreting’ rule designed to assist a trial judge in the all-too typical situation in which the parties throw a foot-high mass of undifferentiated material at the judge.” Dziamba v. Warner & Stackpole, LLP, 56 Mass. App. Ct. 397,399 (2002). “Adoption of an anti-ferreting rule is an appropriate exercise by a trial court in case management discretion. It is a pragmatic and reasonable response to the propensity of lawyers to file literally mounds of affidavits, depositions, interrogatories, and depositions in support of, or in opposition to, summary judgment.” Jd. at 401. Where the plaintiffs responses to a defendant’s statement of facts do not comply even minimally with Rule 9A(b)(5) making it unnecessarily and unreasonably difficult for the motion judge to identify which facts are genuinely in dispute, the motion judge may apply the “anti- ferreting” rule set forth in Dziamba and strike the non-moving party’s responses and deem all of 745263v.1the defendant’s statements of fact as admitted for purposes of summary judgment. Burke v. Digitas, LLC, No. 14-P-1344, 88 Mass. App. Ct. 1102, *2 (Aug. 24, 2015) (unpublished table decision). This Court should strike the following of plaintiffs’ factual allegations in their opposition memorandum and plaintiffs’ cited exhibits: 1. 745263v.1 “Neither Woods nor Drouin took notice of the other subcontractors’ site next to MP’s as they were working at Al6. (Exhibit J, p. 42:5-15, 46:17-47:4, 80:2-5; Exhibit E, p. 88:9-19, 89:13-15, 115:19-24),” (Plaintiffs’ Memo at p. 2 and p. 3). This statement is false and is not supported by the undisputed facts of record. Woods admitted he could see the rebar cage from where he was working at A16 as it was within 6 feet of the form work being done by Manafort. Woods admitted that he walked around the A16 site which was adjacent to the rebar cage. He maintains that he has no memory of seeing the subject plywood at any time either at the A16 site or on or near the subject rebar cage. Woods maintains he does not know what hit him or where the object came from. (CSOF #s 60-61, 63, 80, 88, 95-96 and 98). Drouin testified that he could see the rebar cage while working on Al6. He has no memory of seeing the subject plywood prior to the incident. Drouin did not see the object that hit Woods. He does not know what hit Woods or where it came from. In fact, Drouin testified that he never saw a piece of plywood on top of a rebar cage on the Union Station site at any time. (Exhibit J, Drouin Depo. at pp. 74-75 and 80). Depietri testified that Woods and Drouin would have seen the plywood if it were on top of the rebar prior to Woods’ accident because, “It’s right near them. So you look around, you see things, it’s brought to your attention.” (Exhibit K, Depietri Depo. at p. 57). “The exposed rebar was considered an impalement hazard by both A& C and T & M requiring capping or other approved secure hazard prevention whether it was 10 feet or 3 feet above grade. (Exhibit L, p. 98:10-99:9, 129:15-24, Exhibit O, p. 213:13-20).” (Plaintiffs’ Memo at p. 3). This statement is false and is not supported by the undisputed facts of record. Francis Aquadro was never questioned about protection of rebar 10 feet above grade and he never testified about such a condition. (See Exhibit L). Mr. Aquadro testified that he never saw a piece of plywood on top of the rebar cage at any time prior to Woods’ accident. Mr. Aquadro responded to a hypothetical question that if he had seen unsecured rebar on top of a rebar \cage 3 feet above grade, he would replace the plywood with rebar caps. (Exhibit L, Aquadro Depo. at pp. 98-99 and 129). T&M’s 30(b)(6) designee, Amy Chagnon, did not testify that a rebar cage of any height would be a potential impalement hazard. Ms. Chagnon testified that, in her opinion, a rebar cage that was 10.5 feet above grade should be capped. When asked “why?” she replied, “I don’t know.” (Exhibit O, Chagnon Depo. at p. 213). “There was no contractual or statutory obligation required of MP or its employees to conduct inspection of the job sites or work of other subcontractors. (Plaintiff's Addendum, Items 1-4).” (Plaintiffs’ Memo at p. 3). This statement is false and is not supported by the undisputed facts of record. Moreover, the statement consists of an inappropriate conclusion of law. Items 1-4 of the plaintiffs’ addendum do not concern Manafort’s contractual obligation on the Union Station Job site.’ Under DOC’s subcontract with Manafort, Manafort was required to comply with its Site Specific Safety Plan (SSSP). (DOC’s Addendum at p. 8 and Exhibit C at Article 8.5(D)). Manafort’s SSSP expressly provides that Manafort’s Project Manager “is the communication link between [DOC] ... and other subcontractors ... who may be exposing [Manafort] employees to unsafe acts or conditions. In this case, [Manafort’s] Project Manager must notify DOC and ensure that corrective action_is_taken to eliminate the hazard(s), ultimately ensuring a safe environment for [Manafort’s] employees.” In addition, the SSSP expressly requires Manafort’s field employees to “[iJnform [Manafort’s] foremen/supervisor of any concerns about the safety of work activities.” (DOC’s Addendum at p. 9 and Exhibit H, Manafort’s SSSP). Drouin conceded that if he had seen a piece of plywood on top of the rebar cage he would have taken it down. Drouin testified that it did not matter if the plywood was on Manafort’s site or another site, ... “[i]t could be ten feet, five feet. Doesn’t matter.” If he saw the condition, he would “absolutely not” work near it. (Exhibit J, Drouin Depo. at p. 95), “The only thing behind the Plaintiff was the adjacent job site. (Exhibit J, at p. 81:9- 16).” (Plaintiffs’ Memo at p. 4). This statement is false and is not supported by the undisputed facts of record. It is undisputed that the Union Station project site was large and involved multiple subcontractors working on projects at any given time. Photographs of the A16 site, the adjacent site with the subject rebar cage and the surrounding area marked at the depositions of Mr. Aquadro, Drouin, Depietri, and Woods all show an extensive area behind the subject rebar cage and 1 Items 1-4 of plaintiffs’ addendum contain excerpts from DOC’s contract with the Springfield Redevelopment Authority, DOC’s subcontract with Aquadro & Cerruti, DOC’s subcontract with T&M Equipment; and DOC’s Internal Site Specific Safety Plan. 745263v.1745263v.1 surrounding the rebar cage. In addition, a wall is depicted near the A16 site. These photographs depict numerous construction materials - many of which were Manafort’s. (See Exhibits Q, R, W, and GG). Drouin testified at his deposition that, although not shown in the photographs, there were 40-60 workers west of A16 and there was wall to the north. (Exhibit J, Drouin Depo. at p. 41). Drouin further testified that, at the time of Woods’ accident, Depietri called him and told him that he saw debris flying off the roof of a building on the project. Drouin testified that Manafort had insulation on the roof and that Depietri observed the insulation coming off the roof. Drouin testified, “That’s why he told me to secure our materials.” (Exhibit J, Drouin Depo. at p. 68 and photographs). Timothy Harvey, Manafort’s Rule 30(b)(6) designee identified pieces of plywood similar to the plywood that allegedly struck Woods, on the roof of a building on the job site. (Exhibit CC, Harvey Depo. at p. 102 and Exhibit QQ, Photograph}. Depietri testified that he observed materials being used by Manafort and other subcontractors on the site including plywood and 2-by-4s. (Exhibit K, Depietri Depo. at p. 68). “Drouin heard a sound and saw the Plaintiff's hard hat and glasses go flying. (CSOF 68). He saw the Plaintiff fall to the ground. (Id.) He then saw a piece of plywood inside the newly constructed form that had not previously been at Al6. (Exhibit J, p. 49:15-17, 52:14-20).” (Plaintiff's Memo at p. 4). This statement is false and is not supported by the undisputed facts of record. Drouin testified that he heard something hit the side of the Symons form and “fall back over.” He testified that he “heard” the object but did not see it. He does not know where the object landed. (Exhibit J, Drouin Depo. at pp. 49 and 70). “Almost immediately after the Plaintiff had fallen and plywood appeared inside the form, Drouin’s phone rang. (CSOF §71).” (Plaintiffs* Memo at p. 4). This statement is false, misleading and is not supported by the undisputed facts of record. Depietri called Drouin a few minutes after the accident and asked Drouin to secure Manafort’s loose materials on the site. Drouin testified that he did not see the object that hit Woods. He also testified that he does not know where the object ianded after it hit Woods. Drouin has no memory of seeing a piece of plywood land inside the form box. (Exhibit J, Drouin Depo. at pp. 49, 52 and 70). “Depietri went to Al6 and took photographs of the site, including the plywood resting inside the newly constructed pier box form; he placed his yellow field book on top of the plywood for scale. (Exhibit K, p. 45:10-22, 59:6-7).” (Plaintiffs’ Memo at p. 4). : This statement is false and is not supported by the undisputed facts of record. Depietri testified that he went to the A16 site to take photographs. He testified745263v.1 that he saw the plywood “near the forms that Dave and Ben were putting together.” He does not remember whether he saw the plywood “inside the forms.” He also saw the rebar cage approximately 6-8 feet away from the form. While he was at the scene, Drouin told him that Woods was hit by a “piece of wood.” (Exhibit K, Depietri Depo. at pp. 44-47). Depietri does not know how the piece of plywood in his photograph ended up underneath the banding on the ground inside the form box. (Exhibit K, Depietri Depo. at p. 63). After taking aerial photographs of the scene, Depietri “observed photos in which three (3) DOC employees were moving the plywood from A16; he identified them by their hard hats and vests. (Exhibit K, p. 50:13-17; 52:5-11; 54:10-23).” (Plaintiffs’ Memo at p. 5). This statement is false, misleading and is not supported by the undisputed facts of record. Initially, Depietri testified that he recalled seeing photographs which he took that showed “people” from DOC moving a piece of plywood. (Exhibit K, Depietri Depo. at p. 50). Drouin and Depietri went back to the A16 area and observed 3 DOC employees investigating the incident. (Exhibit K, Depietri Depo. at p. 52). Depietri later recanted his testimony as follows: Q. Did you actually see any person pick up the plywood and move it? A. No. Q. Do you have any photographs showing any person picking up the plywood and moving it? A. I don’t believe so. (Exhibit K, Depietri Depo. at pp. 90-91). Depietri “approached them and asked them why they had moved the plywood, but they denied doing so, despite the photographs. (Exhibit K, p. 49:21:-50:1).” (Plaintiffs’ Memo at p. 5). This statement is misleading and is not supported by the undisputed facts of record, Initially, Depietri testified that he asked the 3 individuals from DOC if they moved the plywood. He testified that these individuals denied moving the plywood. Depietri then said, “this picture shows you guys moving it.” The individuals from DOC stated that they did not move anything. (Exhibit K, Depietri Depo. at p. 54). As stated above, Depietri later admitted that he never saw anyone move the plywood and he did not take any photographs which showed anyone moving the plywood. (Exhibit K, Depietri Depo. at pp. 90-91). 1010. ll. 12. 745263y.1 “Depietri did not report or speak to DOC about this event, including Andrew Wurszt, ... as that was not Depietri’s position to do so. (Exhibit K, p. 43:5-54:23).” (Plaintiffs Memo at p. 5). This statement is false and is not supported by the undisputed facts of record. Drouin conceded that he spoke with Wurszt on the day of the accident after the accident occurred. (Exhibit J, Drouin Depo. at pp. 55-56). At his deposition, Depietri testified that he and Drouin “spoke to Dan O’Connell’s staff. Who they were, I think it was a superintendent and whoever was with them.” (Exhibit kK, Depietri Depo. at p. 48). Depietri claimed that it was Drouin’s responsibility to report the incident to DOC. (Exhibit K, Depietri Depo. at p. 53). Wurszt testified that he spoke with both Drouin and Depietri on the day of the accident. (Exhibit I, Wurszt Depo. at p. 14). Depietri told Wurszt his theory of what may have happened to Woods. (Exhibit I, Wurszt Depo. at pp. 15-16), “On the day of the event, Wurszt, prepared an ‘Incident Analysis Report of Daniel O'Connell's Sons, Inc.” which concluded that the “Plaintiff had been struck by a piece of plywood which originated from the top of a rebar cage at the site adjacent to MP's. (Exhibit [I).” (Plaintiffs’ Memo at p. 5). This statement is misleading and is not supported by the undisputed facts of record. . Wurszt testified that Drouin called him from his cell phone immediately after the accident and told him that “his coworker was struck by something.” Wurszt went to the site and spoke with Drouin and Depietri. When Wurszt arrived at the scene, he saw the subject piece of plywood lying outside the form lying flat on the ground above the form area. Drouin and Depietri told Wurszt there was a gust of wind and Woods was struck “with a piece of plywood or something.” Depietri had come to the conelusion that the “piece of plywood was on or against the rebar cage in the corner of the parking garage. That’s what I based my incident report on.” Drouin simply stated that he thought Woods had been hit by a piece of plywood. (Exhibit I, Wurszt Depo. at pp. 12-19 and Ex. 4 photograph). Wurszt assumed that Depietri’s theory was true so he placed the piece of plywood on top of the rebar cage and took a photograph of it as part of his report. (Exhibit I, Wurszt Depo. at p. 18). “Drouin then prepared an ‘Incident Investigation Report of Manafort Brothers’ dated November 3, 2015, which contained the same information.” (Exhibit KK). (Plaintiffs” Memo at p. 5). This statement is misleading and is not supported by the undisputed facts of record. Drouin conceded that he wrote this report despite the fact that he never saw the subject plywood either in the area of A16 or on top of the rebar prior to Woods’ accident. (Exhibit J, Drouin Depo. at pp. 42, 64, 88). 11745263v.1 13. 14, 15. “Depietri also prepared a Report containing that information dated November 4, 2015. (Exhibit LL).” (Plaintiffs’ Memo at p. 5). This statement is misleading and is not supported by the undisputed facts of record. It is undisputed that Depietri prepared this report. However, Depietri prepared the report based on a pure guess of how the accident occurred. Depietri admits he has no personal knowledge that the plywood was on top of the rebar; he simply guessed that someone put it on top of the rebar; and he made the further assumption that the plywood belonged to Aquadro & Cerruti. (Exhibit K, Depietri Depo. at pp. 51, 56, 66 and 120). “Nathan Clinard, the M.R.C.P. Rule 30(b)(6) deponent for DOC, testified that DOC's internal investigation established that "the plywood in question ...was protecting an impalement hazard in the vicinity of Manafort’s work area." (Exhibit MM, Errata Sheet dated August 28, 2017, correcting p. 178:10-14 of Vol. I of Clinard testimony of July 13, 2017).” (Plaintiffs’ Memo at p. 5). This statement is misleading and is not supported by the undisputed facts of record. There is no dispute that Mr. Clinard so testified at his deposition on July 13, 2017. However, when he was later deposed on September 22, 2017, after additional discovery in the case, Mr. Clinard testified that, after further investigation, it was determined that the rebar cage was not an impalement hazard until after T&M finished backfilling the site on October 28, 2015 as the rebar was approximately 10 feet above grade prior to that time. (Exhibit RR, Clinard Depo., Vol. II at pp. 82-83 and 89-92). As set forth above, DOC’s incident report was based entirely on what Manafort’s Safety Manager, Depietri, reported to Wurszt. After further discovery in this case, it was determined that Depietri’s report was based on a pure guess of what ocenrred. “The weather at the Union Station project on the morning of October 29, 2015 included consistent high winds and gusts; within the three (3) hours prior to the subject event, the wind speed was betweeri 17 and 31 mph, and there were multiple gusts of between 25 and 44 mph. (Exhibit FF).” (Plaintiffs’ Memo at p. 6). This statement is misleading and is not supported by the undisputed facts of record. There is no evidence of a high wind advisory, or any other weather advisory on the date of the accident. Drouin used a weather app and noted nothing of concern. He first noted that the wind began to pick up between 1:30 p.m. and 1:45 p.m. (Exhibit J, Drouin Depo. at pp. 31-33 and 45). Manafort’s Safety Director, Depietri, did not instruct Drouin to secure its materials due to windy conditions until after Woods’ accident. (Exhibit J, Drouin Depo. at p. §2 and Exhibit K, Depietri Depo. at pp. 37-38). The plaintiffs admit that certified weather records show wind gusts: 39 mph at 12:43 p.m.; 32 mph at 12:58 p.m.; and 24 mph at 1:58 p.m. (Exhibit FF, Certified Weather Records). 1216. 17. 18. 745263v.1 “Jackson "was through” the A &C/T&M area adjacent to Al6 at least three (3) times on October 29, 2015 before the Plaintiff was injured. (Exhibit M, p.60:5- 61:6.) If he noticed plywood on top of the exposed rebar, he wouldn't have focused on it because he would have accepted the condition as "nonbazardous”. (Exhibit M, p.55:23-58:4; p.60:5-61:23).” (Plaintiffs’ Memo at p. 6). This statement is misleading and is irrelevant to the issue to be decided on summary judgment. Jackson testified that he walked through the job site several times prior to 2:00 p.m. Jackson did not observe any plywocd on top of the rebar cage. Jackson stated that the rebar would not have been an impalement hazard until after the area had been backfilled since the area would have been at least 7 feet above grade prior to backfilling. Jackson further stated that he would not necessarily consider placing a 35 pound piece of plywood on top ofa 3 foot high rebar cage to be hazardous because it would “a little bit beyond normal” for a gust of unpredicted wind to lift a 35 pound piece of plywood and cause it “to fly” forward into an adjacent worksite. (Exhibit M, Jackson Depo. at pp. 72, 77-81). “DOC cannot delegate the responsibility to provide a safe work environment to anyone on the Union Station project. (Exhibit M, p. 18:21-19:12).” (Plaintiffs* Memo at p. 6). This statement is an inappropriate conclusion of law to be decided by the court based on the undisputed facts of record. The "Owner — Construction Manager Agreement" entered into between the Springfield Redevelopment Authority and DOC required DOC, as the Construction Manager, to " be responsible for managing, coordinating, and supervising all aspects of the work" at the Union Station project, including reviewing, monitoring, implementing, enforcing, and coordinating the quality of the work of all subcontractors in "all aspects of the work” at section 5.2.4. (Sce Joint Appendix Exhibit B, Plaintiffs Addendum, Item 1.) (Plaintiffs’ Memo at p. 7). This statement is misleading, is taken out of context and is not relevant to the issue to be decided on summary judgment. The plaintiffs site a provision of the Owner - Construction Manager Agreement which deals with the “quality” of subcontractor’s work, not the safety of the jobsite. The provision cited by the plaintiffs provides, in part, that DOC is “responsible for insuring that adequate quality control programs are developed, implemented and enforced by [DOC’s] staff and all Subcontractors....” (Exhibit B, at Article 5.2.4). Significantly, the plaintiffs fail to cite any provision in the Owner — Construction Manager Agreement which provides that DOC has the authority to control a subcontractor’s means, methods, techniques, and procedures in perforraing its work on the job site.. That is because there is no such provision. (See Exhibit B). 13745263v.1 19. At sections 8.5 (C), (D) and (L) of the Subcontract Agreement (Joint Appendix Exhibit A, Plaintiffs Addendum, Items 2 and 3), DOC retained the right to direct and dictate "all safety initiatives” to the subcontractor provided that same fell within the boundaries and intent of State and OSHA regulations, and/or the DOC SSSP. All storage of materials by a subcontractor was with the approval and permit of DOC as specified in section 8.10. In addition, in section 8.17 DOC retained the tight to identify and remove improperly stored material or waste from a subcontractor’s work area, with a backcharge to the subcontractor if same was not removed upon 24 hour notice to the subcontractor by DOC. Further, in section 9.2 DOC retained the right to give instructions and orders as to the performance of the work by the employees of the subcontractor through persons designated as the authorized representatives of the subcontractor.” (Plaintiffs’ Memo at p. 8). This statement is inaccurate, misleading and irrelevant. Plaintiffs cite DOC’s subcontract with Aquadro & Cerruti which is not relevant to plaintiffs’ claims against DOC. There is no evidence that Aquadro & Cerruti improperly stored materials or violated any OSHA provision. (See Exhibit A). Significantly, the plaintiffs’ fail to site the relevant contract at issue, namely, the Subcontract Agreement between DOC and Manafort which expressly states that Manafort must “furnish -all labor and supervision; furnish, supply and install all equipment, supplies, tools, scaffolding, hoisting, transportation, unloading and handling; do all things required to complete the Work....” (Exhibit C at Article 1.2 and DOC’s Addendum at p. 8). The contract also provides that Manafort must submit and follow its own site specific safety plan. (Exhibit C at Article 8.5(D) and DOC’s Addendumat p. 8). Manafort’s site specific safety plan expressly provides that Manafort’s “Superintendent is responsible for the overall safety and health practices and conditions on the site.....” (Exhibit H and DOC’s Addendum at p. 9). 14CONCLUSION In light of the foregoing, DOC respectfully request that this Honorable Court strike the report of the plaintiffs’ proposed expert, David Grafton, and the plaintiffs’ statements of additional material facts set forth above. 745263v.1 The Defendant, DANIEL O’CONNELL’S SONS, INC. By Its Attorneys, 15 John G. Bagley, BBO #026050 jbagley@morrisonmahoney.com Denise M. Tremblay, BBO #561238 dtremblay@morrisonmahoney.com MORRISON MAHONEY LLP 1500 Main Street, Suite 2400 Post Office Box 15387 Springfield, MA 01115-5387 Phone: 413-737-4373 Fax: 413-739-3125CERTIFICATE OF SERVICE I, Denise M. Tremblay, attorney for defendant/third-party plaintiff, Daniel O’Connell’s Sons, Inc., hereby certify that I have this day served the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT/THIRD-PARTY PLAINTIFF'S, DANIEL O’CONNELL'S SONS, INC.’S, MOTION TO STRIKE REPORT OF PLAINTIFFS' PROPOSED EXPERT, DAVID GRAFTON, AND CERTAIN OF PLAINTIFFS’ ADDITIONAL FACTS IN OPPOSITION TO DANIEL O'CONNELL’S SONS, INC.’S MOTION FOR SUMMARY JUDGMENT to all counsel of record in this action by serving same via email to: Robert A. DiTusa, Esq. Thomas P. Schuler, Esq. fobert@alekmanditusa.com tschuler@travelers.com Laura D. Mangini, Esq. Law Offices of Steven B. Stein laura@alekmanditusa.com P.O. Box 2903 Lee Dawn Daniel, Esq. Hartford CT 06104-2903 lee@alekmanditusa.com Alekman DiTusa, LLC 1550 Main Street, Suite 401 Springfield, MA 01103 Patricia M. Vachereau, Esq. Jonathan A. Barnes, Esq. atricia, vachereau@libertymutual.com jbames@chelaw.com . Cain, Sherry, Geller & Vachereau William A. Ahern, Jr., Esq. 1 Federal Street, Building 111-4 wahern@chelaw.com Springfield, MA 01105 Gregg, Hunt, Ahern & Embry One Cranberry Hill, Suite 304 Lexington MA 02421 Danie 777. Toe ~Lay Dated: October 9, 2020 Attomey: Denise M. Tremblay 16 745263v.1