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Case 1:04-cv-00048-T Document 55 Filed 07/07/2005 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND PENNSYLVANIA GENERAL INSURANCE COMPANY, ahlo John Sirois, and SAFEGUARD INSURANCE COMPANY a/s/o Rui Henriques Plaintiffs, CIVIL ACTION NO.: 04-48 T VS.
CHURCHILL & BANKS, LTD. and COTTAGE PLAZA, LLC DefendantsIThird-Party Plaintiffs.
VS.
J. H. LYNCH & SONS, INC.
Third-Party Defendant.
PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO EXTEND DISCOVERY Now come the Plaintiffs who hereby oppose the Defendant's Motion to Extend Discovery. Plaintiffs rely on the Memorandum of Law in Support of Plaintiffs Opposition to Defendants' Motion to Extend Discovery filed together herewith, and the exhibits thereto. Plaintiffs, PENNSYLVANIA GENERAL INSURANCE COMPANY and SAFEGUARD INSURANCE COMPANY By their attorneys, Providence, RI 02903 401-52 1-7000 phone 401-521-1328 fax
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Case 1:04-cv-00048-T
Document 55
Filed 07/07/2005
Page 2 of 7
Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 215-665-2192 phone 215-701-2192 fax CERTIFICATE OF SERVICE ,2005, that a true and correct I hereby certify that on this 7fL day of JU[L, copy of Plaintiffs' Opposition to Defendants' ~ e ~ u e s f fAn o r Extension in the Discovery Deadline, has been duly furnished via first class mail to the following counsel of record: Faith A. LaSalle, Esq.
Law Offices One Turks Head Place, Suite 1010 76 Westminster Street Providence, RI 02903 Robert J. Quigley, Jr., Esq.
McKenney, Jeffrey & Quigley 95 Chestnut Street, 6th Floor Providence, RI 02908
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Case 1:04-cv-00048-T Document 55 Filed 07/07/2005 Page 3 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND PENNSYLVANIA GENERAL INSURANCE COMPANY, a/s/o John Sirois, and SAFEGUARD INSURANCE COMPANY a/s/o Rui Henriques Plaintiffs, VS.
CIVIL ACTION
NO.: 04-48 T
CHURCHILL & BANKS, LTD. and COTTAGE PLAZA, LLC Defendantsl'l'hird-Party Plaintiffs.
VS.
J. H. LYNCH & SONS, INC.
Third-Party Defendant.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO EXTEND DISCOVERY 1.
The original complaint was filed on February 17,2004, and served upon the defendants on February 18,2004.
2.
On July 21,2004, this Court held a pretrial conference where it established the following initial scheduling order: Discovery cutoff - May 1,2005; Deadline for filing all motions - May 1,2005, and pretrial memorandum deadline of July 1,2005. 3.
On November 4,2005, this Court held a teleconference where the defendants expressed a desire to join JH Lynch & Sons, Inc. as a third-party defendant. As a result of this proposed joinder, the Court extended all deadlines by two months. 4.
As a result of the Court's first extension of the original scheduling order, the amended discovery deadline was changed to July 1,2005.
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Case 1:04-cv-00048-T 5.
Document 55 Filed 07/07/2005 Page 4 of 7 On June 30,2005, the day before the expiration of the amended discovery deadline, the defendants filed the instant motion seeking a second extension in the discovery deadline. Specifically, the defendants request a 45 day extension in the discovery deadline. It should be noted that while the defendants ask for a "thirty day" extension in their motion, they also specifically ask that the deadline be changed to August 15,2005, which is in fact a 45 day extension in the current July 1,2005 discovery deadline.
6.
The only reason that the defendants assert for extending the discovery deadline is the need to depose one witness, Joseph Tavares. The defendants claim that Mr. Tavares is a crucial witness. However, the defendants do not offer any facts to substantiate this claim. 7.
Mr. Tavares was subpoenaed by plaintiffs to appear for deposition. He was scheduled to be deposed on January 13thalong with several other witnesses. Mr. Tavares appeared for his deposition, however, due to the length of time taken with the other witnesses, Mr. Tavares was not deposed and was released by the plaintiffs.
8.
Although Mr. Tavares has not been deposed, his employer, Mr. Dennis Maroney, was deposed. Mr. Maroney testified that the afternoon of the fire was the only day that Mr. Tavares ever worked for him. Maroney Dep. at 14-21 attached as Exhibit 1. He testified that they were working in a building in fiont of the southwest portion of the sawtooth building, nowhere near where the fire started. He did not observe the fire until one of the tree-cutter employees told him that the building was on fire. He said he "told Joe let's hustle and get the truck loaded." Id. at 21. He said that when he left the site, the firemen were already on site fighting the fire.
9.
Attached as Exhibit 2 is a statement that Mr. Tavares gave to the police after the fire. His statement comports exactly with how his employer, Mr. Maroney testified. In other
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Case 1:04-cv-00048-T Document 55 Filed 07/07/2005 Page 5 of 7 words, he did not see the fire in its incipient stages, he was not working in the area where the fire originated, and he did not work at the job site any other days previous to the fire. There is nothing of any significance that this witness can testify about that will impact the outcome of the case one way or the other. So there is simply no basis for extending the discovery deadline so that his deposition may be taken.
10.
Although the defendants identify Mr. Tavares as the only person needing to be deposed, the defendants do not limit their request for an extension of the discovery deadline to deposing him only. Instead, they seek a broad extension that will enable them to depose any additional witnesses they choose. In this case, twenty-one fact witness depositions have taken place, as well as four expert depositions. All the parties have certainly had a full and fair opportunity to obtain the discovery they need to develop their cases. There is no reason why any further fact depositions are necessary.
11.
The defendants assertion that the requested second extension will not "interfere with the progress of this case" is simply not true. Additional depositions may result in the revelation of additional facts that may require one or more experts to file supplemental reports. These supplemental reports may require further depositions of the expert witnesses. 12.
The discovery deadline was already changed once in this case to accommodate the defendants' desire to join JH Lynch as an additional defendant. The apparent reason for the joinder was that JH Lynch had contracted with the defendants for the erection of a temporary construction fence around the perimeter of the property, something that JH Lynch eventually hired a subcontractor to perform. Yet, none of the defense experts offer any opinions that would suggest that JH Lynch was negligent or otherwise failed in their duty to arrange for the erection of the temporary construction fence-So query why JH Lynch is still a party to this litigation?
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Case 1:04-cv-00048-T Document 55 Filed 07/07/2005 Page 6 of 7 WHEREFORE, the plaintiffs respectfully request that the defendants' motion for a second extension in the discovery deadline be DENIED. PENNSYLVANIA GENERAL INSURANCE COMPANY and SAFEGUARD INSURANCE COMPANY, Plaintiffs by their attopeys, & Peirce Roberts, ~ a r x Felstein r 10 Weybosset Street, grn Floor Providence, RI 02903 401-52 1-7000 phone 401-521-1328 fax a' & r:dm Matthe& F. Noone Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 215-665-2192 phone 215-701-2192 fax
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Case 1:04-cv-00048-T
Document 55
Filed 07/07/2005
Page 7 of 7
CERTIFICATE OF SERVICE
I hereby certify that on this ~ f C day l of copy of Plaintiffs' Opposition to Defendants' Deadline, has been duly furnished via first Faith A. LaSalle, Esq.
Law Offices One Turks Head Place, Suite 1010 76 Westrninster Street Providence, RI 02903 Robert J. Quigley, Jr., Esq.
McKenney, Jeffrey & Quigley 95 Chestnut Street, 6th Floor Providence, RI 02908
a true and correct Extension in the Discovery counsel of record:
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Jul-06-2005 - 12:46pm 0'Connor Phi ladel phi a L i b r a55-2 ry CaseFrom-Cozen 1:04-cv-00048-T Document .- P.r*lS Q: I'm going to show you a document which is the 111 n corner of Cortage and rhe highymy.
PI A: Tbis is the mill rhat burnt?
WI 41 Exacrly.
151 MR. MARONM: Wait until thc quesrion is tq asked.
m 0: This document that I've had rnarkcd as P-20is a [a] foorprinr of the diagram or layout of rhc mill, pj showing a substantial portion of the mill.It is, rio~however, missing this area, rbis uianguly area (111 here - P-20does not,you will nore, docs not [iq include this triangular area srhich I believe is [iq referrcd to as rhe piding area in b n r of the [iq faciliry or the site.
21 Filed 5 864 8037 07/07/2005 T-285 PageP. 003/005 1 of 3 F-821 I 111 RI Q: Thc day of the lke?
A: The day of the &c. He woked a few hours witb ' A: Okay.
if you could, using my pen.
1161 Q: But referring ro P-20, 1 1 1 could you please mark rhc area where you were tlsj rrmoving rhc decking fcom rhe building. Can you q [re1 show me rhe building and mark the area h t you PI were working in on day one.
MR. MARONEY: Wair until he asks che quesrion.
w 0: That's the locauon on day one, to the best of 1241 your recollecnon?
A: If 1had to do this, I w u l d maLc this - I would pi] o rhrcc days rhat you were Grecnhalgh Mill,did you me [rq observc anyoac clse walking in and our of this (171 budding rhat you marked wi& an X?
A: 'PWO gentlemen appmached m c when I was in Jle 1161 nel building.
srq 9: What day was that?
pi] A: I couldn't tell you.
Q: Prior to the iire obviously,right?
pq [iq working ar the FII A: Ycs.
Q: Do you remember who they were?
A: I believe they werc lumber buycrs.
Page 11 Page 14 draw a line here,.and that's rhc fmnt of that n bdding, and then the saw tooth is here. PI Q: OkayY A: 1never entered the saw tooth. I mean. I waked 141 (51 through it one day. but rhar's nor whcre my m business was. My business was here.
m Q: And rhe building rhar you marked with that X, is r a ~that the only building you were working from and (11 the only building you had planned to work from during rhis projccr?
FII
A: Yes.
1121 Q: Day two, again, this may souad repecitivc, bur 1131 again, chc building thar you've marked with the X ri41 rhere, char's the only buiIding you were working [ISI from3 rial A: That's the only building thar I worked in. PI [iq \ 111 lg Q: Okay.Do you know their names?
A; Taylor Moore and Peter Corr.
p~ 0: How do you knov these gentlemen?
141 A: They are in rhc reclaimed lumber business, biggesr m in the COT.
161 n riq 111) Q: So you have done business with rhese guys inrbe 0: This had been the &st h e ?
A: I ar;isn't do* business with rhem.
Q: Was therc a discussion with rhem a b u t doing. cWerenr reason?
MR. MARONEW; Objection.
ria A: They were there for a different reason. trq MS. LaSALLE: What day ws thiu?
MR. BUCHANAN: Iasked him in any of rhe pq pa] days leading up LO the firc.1 believe he didn't nq have a specific recollection as ro which day thcsc men approached him .
pi) Q: Now,did you have ;lay dealings with Mr. BaccajTe m or his crew while . p uwere working at the sire at [tq 1141 i'
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Ju l-06-ZOO5 12:46pm From-Cozen O'Connor
- PhiDocument ladelphia L ibrarv 55-2 Case 1:04-cv-00048-T Filed 07/07/2005 Page 2 of 3 Page 1 7 PI Q: Did they direa you in any way with regard to the rn wrk p u were doing?
A: No.
(41 Q: SO basically you wcrc on your own? m A: O n m y o m .
w Q: During the coutse of OW work them, did you ever m ha= conversations at ?he site with anyone from [a] Chufihill& Banks?
(el A: Not at all.
Q : How about with J. H.Lynch?
nq PO A: Nor at all.
tta Q: When you narced to work ar the job sire or at the [I$] Greenhalgh Mill,were you ever provided Fvith a ~ 4 1 security handbook h m anyone?
~ . q A: Security?
[iq Q: M-hm.
a71 A:No.
Q: Had myone ever had discussions or convcrsations rraj is^ wirh you about rtcspassers, that is, either pq children or homeless people entering and leaving (211 the pmperry?
rn A: A: don't recall.
'pi Q: Whenyouwere working in thar buildingmarked with WI the X did you ever notice any Signs that homeless I Z ~people were living in thar particular scction of (sl Page 19 w n propew whether or not &ere Q: Do you recall ar any rimt when you were at the were my security guards at rhc site?
w] A: I don't r e a l l seeing any.
Q: Any night watchman, do you recall, do you wcaU [sl pq seeing any night warchman?
m A: No. I don't.
Q: Do you smoke?
PI w A: No.
Q: DoesMrTavaressmoke?
11) A: He didn't then.
a Q: Is it fair to say &at neither you nor Mr.Tavwes a1 smoked ar the Greenhalgh Mill during the work you IJI were performiag t h e e ?
MS. LaSALtE: Objection.
Q:
You can answer if you can.
EI A:
Neither one of us smoked.I cold him no smoking. fl 4: At any time that you were working at the site, did 81 el you ever observe any fires?
01 A: No.
a: In any of thc buildings at all?
11 a A: Excuse me,the day of the mill, I did obstrvc. Q: Tht day of&C 3j A: The mill fire, I saw the firc.
9 0; Prior to your observations of the fire in 51 41 q - Page 16 rhe building?
A: Therr was debris all about thc building. pj Q: In the building marked with the X?
1 A: In rht building marked wirh thc X, yes. debris. pj MS. LaSALLE: In the building mPtked wirh [q fht X; i s dwr your tesrimony?
m THE WITNESS: Ycs.
PI 0: Can you give me somc examples of the debris thar E JII you obsemcd in rhar building.
A: Cans, the basement was loaded with c1ccu-i~ rial ~ 1 motors.
1 cablcs, carts.
Q:
What kind of GUTS?
[izl A: Just a couple of old cans.
1131 1141 Q: Sh0ppkg C-?
A: NO.pwhcms that yo11 normally use in a reailc 115) [(I d l .
[iq Q: OkayAny cvidcnce of cardboard boxes or rags or aaj blankets that homeless pcople would have urilized no] ro sleep with, that you can recall?
[I61
~cr] pi1 tnr A: I don't recall, no- Q: W a s there any t3WIit.i inside rhar building? A: I don't real1 that.
QQ:Was there any warnti on the ovwide of that q 41 q q ?
01 BJ Q: And was Mr-Tames wlth you at that point? A: Yes, he was.
a: Did you go &ere together?
A: Ycs.
Q: And when did your fist observe - Snike *At some point after you arrived that day, did you obseme smoke and/or was inside che basement of the mill.Therc's a oading dock there. I had the uailcr in thcrc SJ and I u a s loading, and I believe there was a guy a from the logging company and said, "Hey,you got 4 to get out of here; the rrdll L on h.so "1 - ru1 WIbuilding?
A: r don't recall &t drhcr.
R e p o w &sodatfs @01) 351-1660 Page 20 connection with rhc incident in qucsrion, had you s Cvcr sccn any fires q A:No.
11 m-u- 17-Page20
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- 12:46pm O'Connor Phi Document l a d e l p h i a L i b r55-2 ary Case From-Cozen 1:04-cv-00048-T Jul-06-2005 J Z U X15,2U05 ~ P . OO5/OO5 T-285 215 864 07/07/2005 8037 Filed Page 3 of 3 F-820 -.
M i b i t P-20;lnd usiry rhe blu Id you depict in &ar PI 1101 Q:
Cur you mke the pea and
- dilw a d r d e narc to char X. Okay. Now, where was Mr Tavares at that rime?
A: Right beside me.
[ISI
Q: Can you draw another cucle?
pa1 A: Yes.
Q: So you were basically standing right next to each [iq riel orher.Aftcr you were Infomcd of the tire,what [ln did you do n w ?
rlw .m e t ' s hustle and_ger rbc mck loaded. Q: Did you continue to work3 1101 (2al A: Yes.
0: How long did you conrinuc lo work before you 1211 dedded A: Until the truck was loaded.
PI Q:
Canyou shawmc drawinga squarearhehtheloading psi psl dock is on that diagram, P-20, (111 i - [TI area hcrc, to rhc p-g pnd I ~ e ~ p pshe td m load down, and then I: left.
Q: So when you were lcavingrhc ~reenhal&hMill sitcl W the fire dcprrmcnt was illready cngaging in [q suppression acrivirics?
la] A: CmwxThe il.w nation is right there. m Q; Now,when,if zrany dme subscquenr to being (el noMed of the &e, did you fLst observe smokc w and flames coming out of rhe buildin@ A: When I w a s rbld by the logger, one of the logging IOI 111 guys that the mill aras on tire, char's when I came 121 oUt.At thar time, I alsO observed the fire 131 dcparcmcm doing there,going.you know,going to IAI ir.Thcre were two firemen going in that area. In Q: So the n o s a t i o n and your obsemuons of rhe 14fire and the fire d c p a ~ ~coming ~ ~ n ro t the scene In all son of happened like one, m,three? 'el A: Just happened quickly.
Q: And u n you.wing that pen on the diagnm, in the a 101 diagram on P-20, cm you indicacc where you were rq when you first observed smoke and 6re coming &m pl the building?
A: Want me to use a uiangle?
P) NI Q: That's fiqc-Thatwould be great.
rn A: I walked out to here.
-, -- Page 22 01 A: ]loading dock is thtrc and then doam in the n basement.
a: Is rhar an outside and inside loadiag dock? Is PI PI part of it enclosed?
[q A: No. I had to back up to it.
n Q: It's all on rhe outside then?
m A: Yes.
Q: Overhead door that scniccs it?
[el PI A: There was onc, 1101 Q : I'm not clear about exactly where you and nil Mr.Tawares srcrc. Were you inside or omside the 113 building at the dme - mikc that at the dme ~131you were advised of the fire?
UAJ
A: I was inside the building and he was right beside I I -.We ~ wcm in rhe basement of the building,Tbc riq loading dock was on a different level. I went fin down and backed up again into rbc bascmenr, pur lie] the uailcr in the basement, and 1W ~ Sloading. ns] Thar's when I was informed.
rzol 0: So afker you finished loading rhe mck, what did QII you do?
w A: I got in the vudc wilh Joe T a m s , proceeded gs] our. I asked the filremtn if 1 could cross theit WIwares 1ines.They had their lines run out and psi they told me yes, I could. I drove up into this - - Page 21 Page 24 (8) Page 26 Q: 0kay.Where was Mr.Tavwes? .
n A: I bclipe hc was still in the building. He might m have came out. I doh't r e d .
q: And then after you observed the smoke and flames, [ol ts did you - I guess what I'm crying to get at [q did you go out ro see wherhcr or not the fit was m rtally there was really a fire and then you [a went back into work, confirming what you were PI a ) g told about a tire?
s A: When I sawthefirc dcpartmcnt comhginand1saw 11 rhe smoke coming in I had figured that it was 111 - - n on &e.
s - 9: So everything basically, like you said. it sort of 41 happeed s~)~ntaneously?
q A: C o m a .
Q: Now, when you fLst observed 6re and smoke, q 71 referring to rhar diagnm. can you indtcare wlrh sj Lht bluc pen where you can recall smoke and fire q emwdng from?
A; First I didn't see &t.I s a w smoke. I didn't scc f3-e until after. I bclicvc it was somewhere w in here. Coming t b m hem. It was just a small !31 gray smoke coming out.
Q: Now, was the smokc emanating from within the MI 9 building or outside of the building? q n] Min-USdptwD
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Ju I-06-2005 - 12:46pm From-Cozen O'Connor PhiDocument l adelphia L i b r55-3 ary Case 1:04-cv-00048-T 215 864 07/07/2005 8037 Filed T-285 Page P1. 002/005 of 1 Date:
I Jb 11- 174 3 Place:
SL.#
r h m ~Ou ~ ?*n~f6 nf hrU F I ~oh~ariiy,
L. mLJ*-'s P ~ O mu& ~ ~ S thefi[lowing .
s Q- What is your name ?
.
~ ~ ~ e m e f i ~ ~ ~
Q. What is your date of birth?
Starement taken by Wiulesses:
F-028
Signature .
6F ~ F
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