Motion-Secondary: Chiachio, Jr., Richard P vs. Lindsay Corporation et al

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                                sew: Ray D - Winans

[N se

HOTIFY 20

COMMONWEALTH OF MASSACHUSETTS

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SUFFOLK, SS SUPERIOR COURT DEPARTMENT |

OF THE TRIAL COURT,

CIVIL ACTION No: 1¥84COR43S H,

 

I Notice sent

 

 

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RICHARD P. CHIACHIO, IR. ) uke
Plaintiff, ) \ G. & B.,P.C.!
) | J. 1].
v. ) ! J. Ke EL
) SUFFOLK, ss. SUPERIOR COURT DEPT L+ & E-
LINDSAY CORPORATION, LINDSAY ) eate | 2/77 M. J.S.
TRANSPORTATION SOLUTIONS SALES )  Fileo? a oS
& SERVICE, INC., BARRIER SYSTEMS, INC.) J AIA SSS PLA. Gs
SAFE TECHNOLOGIES, INC., DELUCCA ) | ASSISTANT CLERK hh
FENCE COMPANY, INC., JACOBS ) : co. 0.
ENGINEERING GROUP INC., ) i 8. K. Re
Defendants. ) I R.P. Ss.
) | KH. & Be,
ic. J. Ba
JOINT PROPOSED DISCOVERY PLAN AND SCHEDULING ORDER E & Boothe
IT. A. M.
Michael Serra and Michael Gillis, counsel for the Pins Christopher Sullivan, James y_ LAW.
OFFS. PC
Heller, and Shelby Riney, counsel for the Defendants Lindsay Corporation, Lindsay C. A. &.
S.Mc., ©

Transportation Solutions Sales & Services, LLC, Lindsay Irnspraton Systems, Inc., f/k/a & C->LLP

Barrier Systems, Inc., and Safe Technologies Inc.; Ryan Smith, counsel for DeLucca Fence
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Company, Inc., and Christopher Betke, counsel for Jacobs! Engineering Group, Inc., having (sc)
participated in a telephone conference on March 6, 2019, hereby submit their Joint Case

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Management Statement & Proposed Order for the Court’s review and consideration:
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I. DISCOVERY PLAN

A. _ Legal Issues. |
Plaintif's Complaint alleges that the X-LITE End Terminal System is defective on
unreasonably dangerous. Plaintiff contends that Defendants Lindsay Corporation, Lindshy

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Transportation Solutions Sales & Services, LLC, Lindsay Transportation Systems, Inc., f/k/a

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Barrier Systems, Inc., and Safe Technologies Inc., were negligent in the design and manufacture
of the X-LITE End Terminal System and should be strictly liable to Plaintiff for the injuries he
sustained on September 16, 2016, during a single vehicle impact with an X-LITE End Termin’
System that Plaintiff alleges failed to properly function, causing guardrail to penetrate the

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occupant compartment. Plaintiff alleges that at the time of the subject collision, the X-LITE End

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Terminal System was defectively designed, tested, manufactured, and lacked adequate warnings.
Furthermore, Plaintiff alleges that Defendants DeLucca Fence Company, Inc., and Jacobs
Engineering Group, Inc., negligently selected, installed, repaired, inspected, and/or maintained

the Subject X-LITE End Terminal System, which caused or contributed to cause the alleged

failure and injuries suffered by Plaintiff.
The Lindsay Defendants deny they were negligent in the design or manufacture of the x
LITE End Terminal System. They assert the defense of cornparative negligence based on the
Plaintiffs alleged consumption of narcotics, his loss of control of the vehicle he was operating,
crossing lanes of traffic, and striking the barrier. |
Defendants DeLucca Fence Company and Jacobs Engineering Group also deny liability
relating to Plaintiff's allegations contained in the Complaint. |
B. Motions.
On February 2, 2019, Defendant Valmont Industries, jinc., served its Motion to Diane
for lack of personal jurisdiction. On March 2, 2019, Plaintiff filed a notice of voluntary dismiseal
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without prejudice of Defendant Valmont Industries, Inc. As such, Defendant Valmont’s Motion

to Dismiss is moot and there are no pending motions.' '
Plaintiff does not anticipate any upcoming motion practice but will file standard pre-trial

motions, including, but not limited to, motions in limine and motions to strike or limit expert

witnesses. 1

The Defendants anticipate filing Motions for Summary Judgment upon the completion of

discovery in this case. The Lindsay Defendants also anticipate a potential Motion to Bifurcate
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Trial on the issues of liability and damages, as well as the possibility of Daubert-Lanigan

Motion(s) pending disclosure of experts. The Lindsay Defendants further anticipate filing a pre-
trial Motion in Limine to permit testimony, pursuant to Law v.. Griffith, 457 Mass. 349 (2010), of

certain keepers of the records and/or person(s) most Knowledgeable at each of the medical

treatment providers.

Cc. Amendment of Pleadings.

At this time, the parties do not anticipate amending the le pleadings, The parties agree that

the deadline to amend the pleadings is September 20, 2019.
D. Discovery. |
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1. Discovery to Date:

G-——- — -

The parties are serving written discovery and discussing potential dates for fact witn
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depositions. The Lindsay Defendants also have served two;Keeper of Records subpoenas ft

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records from third-party witness companies. i

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2. Scope of Discovery.

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a. Information concerning any ‘witnesses who possess relevai
evidence and information;
b Review and inspect any evidence or documentation supporting the

claims, defenses, and damages alleged in the underlying lawsuit;

c. Computation of any category of damages claimed in ‘the

underlying lawsuit; 1
. Id. Depositions of fact witnesses; |
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e. Depositions of expert witnesses, and,

f. Such other discovery as may be appropriate based upon the facts
revealed during investigation and discovery.

3. Preservation of Information. |
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Massachusetts Rules of Civil Procedure. The parties have taken reasonable measures to preserve
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The parties are aware of their preservation and discovery obligations under the

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relevant documents and physical evidence, including Electronically Stored Information (“ESI”),

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that are maintained in locations and systems where such relevant information is likely to be

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found in accordance with the Massachusetts Rules of Civil Procedure,

The Lindsay Defendants served the Plaintiff with a preservation of evidence demand i bn
November of 2018. The Lindsay Defendants firther expressly request all parties preserve aly
evidence from the accident scene, however small, including but not limited to the alleged x
LITE End Terminal System, parts of any vehicle(s) involved in the accident, and/or blood/tissue
samples from the Plaintiff. . |

E. Relief. 1

1. Relief sought through Complaint.

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Plaintiff seeks damages from Defendants Lindsay Corporation, Lindsay Transportation

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Solutions Sales & Services, LLC, Lindsay Transportation Systems, Inc., f/k/a Barrier Systems,
Inc., and Safe Technologies Inc., relating to the allegedly defective and dangerous X-LITE End
Terminal System. Specifically, Plaintiff seeks compensatory damages for past and future medical
bills, lost wages, and other money damages as a result of his ongoing physical injuries sustained

during the subject collision. Plaintiff also seeks non-compensatory damages for the pain and
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suffering caused by his physical and emotional injuries suffered as a result of the allegedly

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defective and dangerous X-LITE End Terminal System. Additionally, Plaintiff seeks

compensatory and non-compensatory damages from Defendants DeLucca Fence Company, Inc.,
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and Jacobs Engineering Group, Inc., due to their alleged negligence associated with the
selection, installation, repair, maintenance, of the subject X-LITE End Terminal System.

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2. Amount of damages and Description of Calculation. '

Plaintiff anticipates offering expert testimony identifying the specific amount of
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compensatory damages suffered by Plaintiff as a result of the allegations set forth in his
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Complaint. During the subject accident, the guardrail severed Plaintiff's left leg above the knee,
which resulted in amputation. As a result, he will have continuing medical needs for the
remainder of his life. He also lost significant time from work and will continue to suffer wage

loss. Plaintiff reasonably believes that he will offer at Jeast $20,000,000 in damages to the jury. ;
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FE Settlement and ADR. |

There have been no settlement or ADR discussions to date. The parties believe that

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mediation of this matter may be beneficial following initial stages of written discovery, fact

witness depositions, and expert discovery. No demand has been presented by the Plaintiff. \
G. Scheduling. ‘
Please see section (II) for Proposed Scheduling Order
H. Other Orders.

None.'
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Il. PROPOSED SCHEDULING ORDER DEADLINES !
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Pursuant to the Early Case Management Confererice, the parties offer the follow

proposed scheduling dates: '

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1. Motions for Leave to Amend Pleadings. The parties propose that any motions

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to rt to amend the pleadings, or to add any cross-claims, counterclaims, or third-party claims
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shall be filed by September 20, 2019. !

2. Discovery. The parties propose that all pretrial fact discovery shall be completéd

by February 28, 2020. {

3. Experts. The parties propose that Plaintiff shall disclose retained and nob
retained experts on or before March 2, 2020. Plaintiffs shall make their retained expert witnesses
available for deposition no later than April 17, 2020. Defendeats shall disclose retained and noe
retained experts on or before May 29,2020. Defendants shal make their retained expert

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witnesses available for deposition no later than July 31, 2020. Any rebuttal witness must be

disclosed on or before August 3, 2020. Rebuttal witnesses shall be produced for deposition by

4. Dispositive Motions. The parties propose that dispositive motions shall be file
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by August 28, 2020. Responses shall be filed September 28, 2020. Replies shall be filed by

August 21, 2020. | |

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October 9, 2020. The parties request a hearing on any dispositive motions on October 30, 2020,

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or as soon thereafter as is convenient for the Court. ‘ i

5. Pretrial Conference. The parties propose that pre-trial conference shall be on
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December 1, 2020. ' !

6. Trial. The parties propose that this case shall be scheduled for jury trial on

January 11, 2021 through January 22, 2021.
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|Lindsay asserts that this case is appropriate for bifurcation given (a) the complexity of the
product design allegations involved and the expectation that trial will involve several experts on

liability alone; (b) the sheer number of co-defendants, not all of whom are likely to be found

jointly liable and may not all be required to bear the cost of a trial on damages; (c) the
undisputedly severe nature of the Plaintiff's bona fide injury and the inherent prejudice involved
in considering such severe injuries jointly with liability. In the event that the parties cannot agree
on bifurcation, the Lindsay Defendants intend to file a Motion to Bifurcate at the appropriate

time.

WHEREFORE, the parties respectfully request thet this Honorable Court enter !a

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Scheduling Order and such further relief as the Court deems appropriate.

For the Plaintiff, Richard Chiachio: For the Defendants, Lindsay Corporation, |
Lindsay Transportation Solutions Sales &
Services, LLC, Lindsay Transportation |
Systems, Inc., f/k/a Barrier Systems, Inc., and
Safe Technglogies Inc:

            

Christopher J. Sullivan, BBO # 548137

J oseph L Rogers, BBO # 670468 Peter A. Ghattas, BBO/# 688872

GILLIS & BIKOFSKY, P.C. SULLIVAN & ASSOCIATES, LLC |

1150 Walnut Street 500 West Cummings Park, Suite 4700 '

Newton, MA 02461 Wobum, MA 01801 |

(617) 244-4300 (781) 939-5840 i

mgillis@gillisandbikofsky.com gsullivan@sullivanlitigation.com :

jrogers@zgillisandbikofsky.com pghattas@sullivanlitigation.com :
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J, Kent Emison, pro hac vice James H. Heller, pro hac vice

Michael J. Serra, pro hac vice Shelby K. Riney, pro hac vice

LANGDON & EMISON COZEN O’CONNOR |

911 Main Street 1650 Market Street, Suite 2800 .

Lexington, MO 64077 Philadelphia, PA 19103 :

(660) 259-6175 (215) 665-2189

kent@lelaw.com jimheller@cozen.com

mserra@lelaw.com sriney@cozen.com| |
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For the Defendant, DeLucca Fence Company, For the Defendant, Jacobs Engineering Group,

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Ryay/F. Smith, BBO # 666855 Ghfistopher G. Betke, BBO # 552588 '
ENGELBERG & BRATCHER Elizabeth A. Doubleday, BBO # 666693 i
100 High Street, Suite 1450 COUGHLIN 'BETKE, LLP

Boston, MA 02110 175 Federal Street

(617) 371-4226 Boston, MA 02110

ryan.smith@zurichna.com (617) 988-8050

cbetke@coughlinbetke.com

edoubleday@coughlinbetke.com
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