Rodriguez VSNational

1
1 SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF BRONX : CIVIL TERM : IA-22
2 -----------------------------------------x
CIRRO RODRIGUEZ, : Index:
3
Plaintiff(s) : 16482/95
4
-against- : Trial
5
NATIONAL EQUIPMENT CORPORATION, :
6
Defendant(s). :
7 _________________________________________
8
Third-Party Plaintiff(s) :
9
-against- :
10
FERRARA FOODS & CONFECTIONS, INC., :
11
Third-Party Defendant(s). :
12 -----------------------------------------x
851 Grand Concourse
13 Bronx, New York 10451
May 18th, 2004
14
B E F O R E:
15 HONORABLE NORMA RUIZ,
Justice & jury.
16
A P P E A R A N C E S:
17
PLAINTIFF: JOHN E. DURST, JR.
18 285 Broadway
New York, NY 10007
19
DEFENDANT: ROSE COTTES, ESQ.
20 Eustace & Marguez
311 Mamaroneck Avenue
21 White Plains, NY 10605
22 DEFENDANT: FRANCINE SCOTTO, ESQ.

Newman Fitch Altheim Myers, PC
23 14 Wall Street
New York, NY 10005-2101
24
25 LORRAINE L. RAMSEY
Senior Court Reporter
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1 PROCEEDINGS
2 MR. DURST: John Durst for the
3 plaintiff Cirro Rodriquez.
4 MS. COTTES: Rose Cottes for the
5 defendant National Equipment Corp.
6 MS. SCOTTO: Newman Fitch by Francine
7 Scotto for defendant Ferrara Foods &
8 Confections, Inc, third-party defendant.
9 (Whereupon, the following discussion
10 takes place in the robing room among the
11 Court and Counsel, outside the hearing of
12 the sworn jury.)
13 THE COURT: We are in the robing room
14 outside the hearing of the jury.
15 Apparently, I've been advised by my
16 court clerk that Cleo Solomon,
17 S-O-L-O-M-A-N, alternate number three,
18 called in ill this morning.
19 Apparently, she may have some sort of
20 stomach virus. I don't anticipate that
21 this will be more than one day so we have
22 a number of options.
23 Let's go off the record for a moment.

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1 PROCEEDINGS
3 the plaintiff and sworn jurors.)
4 THE COURT: Back on the record. We've
5 discussed off the record the alternatives
6 available to us and Mr. Stone, our court
7 clerk, indicates that having had a full
8 and complete conversation with Miss
9 Solomon, he doesn't believe that she will
10 be with us certainly not today and the
11 question becomes if she will be amenable
12 for coming in for the balance of the time
13 that we may anticipate being on trial.
14 Mr. Stone, you told her what exactly
15 with regard to her being here?
16 THE COURT CLERK: When she called in
17 ill, she said she was heading to the
18 doctor. I said chances are we are
19 starting at 2 o'clock, can you be here by
20 then? She indicated that she doesn't know
21 how fast she'll be seen at the clinic and
22 from the general conversation and the
23 nature of her symptoms she was -- she had
24 indicated she had -- she was up-chucking,
25 she indicated she had diarrhea. She did

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1 PROCEEDINGS
2 not sound healthy.
3 THE COURT: In other words a stomach
4 virus?
5 THE COURT CLERK: Stomach virus
6 perhaps it can cleared up within 24 hours
7 but from my conversation with her she
8 didn't seem to be -- she didn't think it
9 was likely that she would be with us --
10 THE COURT: Recovering any time soon.
11 THE COURT CLERK: -- quickly. In
12 purposes of the jury delay of the case, it
13 would be a few days to wait for her.
14 THE COURT: All right. In view of the
15 fact that Mr. Durst, you have already
16 expended monies on the doctor whom you
17 anticipate calling at 2 o'clock this
18 afternoon, being that counsel and the
19 Court we were going to engage in certain
20 preliminary legal issues this morning in
21 advance of opening this afternoon, but
22 because this may potentially be a
23 protracted trial, at least more than two
24 weeks, and the reason that I asked for
25 three alternates instead of two alternates

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1 PROCEEDINGS
2 was because I had the sense that this
3 trial was going to be lengthier what with
4 the number of witnesses and other needs of
5 this particular case, and because there
6 may be legal issues that will, gauging the
7 preliminary legal issues that we've been
8 dealing with, this may be a little longer
9 than anticipated.
10 I wanted to go with three alternates.
11 I don't want to start off this early with
12 two alternates, so I'm going to ask the
13 three of you we'll have a ten person --
14 today is Tuesday, so we should be able to
15 get ten people up here ASAP from the jury
16 room.
17 I'm going to ask you counsel to be as
18 brief as is possible, to zero in on biases
19 of the prospective panel, their ability to
20 be fair and impartial and, obviously, if
21 they have any cause issues. Hopefully,
22 you'll all agree to excuse these with
23 cause issues to expedite the smooth
24 selection of alternate number three. As
25 soon as you are done with that, we will

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2 reconvene in my chambers with the court
3 reporter at an appropriate time and we
4 will deal with the legal issues that we
5 have been dealing with since certainly
6 yesterday afternoon, and Friday afternoon.
7 All right, so I will now explain to
8 the jurors that because of this unforeseen
9 event, they will be coming back here at 2
10 o'clock. All right. So thank you all.
11 THE COURT: Off the record.
12 (Whereupon, the following takes place
13 in open court, in the presence of the
14 plaintiff and the sworn jury.)
15 THE COURT: Okay, let's bring the
16 jurors out.
17 THE COURT OFFICER: Jury entering. All
18 rise.
19 (Whereupon, the sworn jurors enter the
20 courtroom and take their respective
21 seats.)
22 THE COURT: Good morning, ladies and
23 gentlemen.
24 THE JURORS: Good morning.
25 THE COURT: Have a seat. Welcome to

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2 I.A. 22, Bronx Supreme Court, Criminal
3 Term. Come on let's see happy faces
4 everyone. Smiley faces.
5 All right, my name is Judge Norma Ruiz
6 and I will be presiding over the trial
7 that you heard just a little something
8 during the course of voir dire.
9 Now for those of you who are very
10 observant, you might have figured out that
11 you're missing one of your group. One of
12 the alternate jurors has taken ill and
13 will probably not be with us for the
14 balance of the trial. This is an unusual
15 occurrence. It rarely happens but in this
16 instance even before you've heard anything
17 about the case a juror has taken ill. So,
18 because we need to have a third alternate
19 in this particular case, the attorneys
20 will work very quickly to try to gather a
21 third juror. That means that we're
22 awaiting up a small panel to come upstairs
23 from the jury room. Three attorneys will
24 voir dire and select one alternate juror
25 from that batch.

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1 PROCEEDINGS
2 All right, everyone. So I apologize
3 if this inconveniences any of you but,
4 obviously, we cannot proceed until we have
5 that other juror.
6 So that being said, I am going to ask
7 you and in addition the attorneys once
8 they've selected that third alternate, the
9 attorney and the court have preliminary
10 legal issues which we need to continue to
11 address before the case begins.
12 So again I apologize profusely to you
13 for invading your time but I'm sure you
14 understand how sometimes these things
15 occur and the interests of justice demand
16 that we address these issues and take care
17 of our selection of a third alternate.
18 So I'm going to ask you all to be back
19 here this afternoon. I'm going to say
20 about -- at about 2:15, all right
21 everyone.
22 So you will utilize this time that you
23 have, I'm sure, the best way you can.
24 There are places to go in and around the
25 area.
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1 PROCEEDINGS
2 For those of who you live near by, you
3 might want to go home. There's a movie
4 theatre down the road. I don't know if
5 the movies come out early. You can have a
6 movie or you can have a meal. It's a
7 really warm day out there you might just
8 want to take advantage of the warm
9 weather.
10 Again, I apologize and we will see you
11 back here at 2:15, ladies and gentlemen.
12 Thank you very much, jurors.
13 THE COURT OFFICER: Jurors step right
14 in the back, please.
15 THE COURT OFFICER: All rise, jury
16 exiting.
17 (Whereupon, the sworn jurors exit the
18 courtroom.)
19 (Whereupon, the case was set aside, to
20 be recalled later.)
21 A F T E R N O O N S E S S I O N
22 THE COURT: All right, counsel, the
23 jurors are coming up in about five
24 minutes.
25 THE COURT CLERK: They should be here

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1 PROCEEDINGS
2 any minute.
3 THE COURT: As quickly as you can, then
4 we'll deal with the legal issues, all
5 right. Thank you.
9 the sworn jury.)
10 THE COURT: Present in the Court's
11 chambers are all counsel and the Court.
12 Yesterday afternoon counsel and the
13 Court were in chambers flushing out
14 certain legal issues that counsel had
15 submitted for the Court's consideration
16 Friday afternoon in the way of voluminous
17 motions in limine.
18 Let's take the issues that were
19 fleshed out yesterday and I'll allow all
20 counsel to place on the record, if you
21 remember what you said yesterday, the same
22 arguments that were proffered yesterday.
23 Let's start with the lost earnings.
24 Defendant's motion is to preclude
25 testimony of the plaintiff's lost earnings

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1 PROCEEDINGS
2 on the basis of his presumptive illegal
3 alien status.
4 MS. COTTES: National Equipment moves
5 to preclude any mention of past and future
6 lost earnings in this case based upon past
7 lost earnings.
8 I draw the Court's attention which is
9 set out in detail in my memorandum of law
10 that the Supreme Court case of Hoffman
11 Plastics holds that an undocumented
12 illegal alien cannot be awarded back pay.
13 Here plaintiff, himself, has admitted
14 in responses to interrogatories that he
15 does not have a social security number and
16 that at his deposition he has admitted
17 that he has no green card and came here
18 illegally through California.
19 For those reasons, based upon Hoffman
20 Plastics and the lower court cases which
21 followed it, plaintiff should not be able
22 to seek or put in any testimony as to past
23 lost wages.
24 Additionally, plaintiff should be
25 precluded from seeking any future lost

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1 PROCEEDINGS
2 earnings as future lost earnings have
3 never been pleaded or claimed in this
4 case.
5 THE COURT: All right, let's not
6 discuss that particular issue. I'm just
7 dealing with that first part.
8 MS. COTTES: With the past --
9 THE COURT: Yeah, with regard to the
10 illegal alien status, that's what I'm
11 dealing with right now.
12 MS. COTTES: Based upon his illegal
13 alien status, I would seek to preclude him
14 from seeking past lost wages.
15 MS. SCOTTO: I join in that request,
16 Your Honor. And I also submitted a
17 memorandum of law with respect to the case
18 of Hoffman, as well as a Supreme Richman
19 case that deals with this issue.
20 But my arguments are basically the
21 same as Miss Cottes, so I won't take up
22 the Court's time.
23 THE COURT: Okay, Mr. Durst.
24 MR. DURST: My understanding, Your
25 Honor, is that that case dealt with

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1 PROCEEDINGS
2 Federal Law being applied to another
3 Federal Law and that the states were not
4 preempted from exercising their own New
5 York -- their own state policy with regard
6 to the issue and the state policy, as I
7 understand it in New York, is to permit
8 aliens to make claims for lost wages and
9 that's the short of my argument.
10 THE COURT: All right, I would cite to
11 you, defendant, the following two cases.
12 Public Administrator Bronx County as
13 Administrator of the Estate of Peter J.
14 Kirby verses Equitable Life Assurance
15 Society of United States. 192 Appellate
16 Division Second, 325. First Department
17 1993.
18 There the Court allowed the
19 plaintiff's administrator to offer
20 evidence of any wages that the illegal
21 alien decedent might have earned and that
22 is with regard to future earnings in this
23 particular case.
24 I also cite Clapa CLAPA, verses ONY
25 Liability Plaza Company. New York Supreme

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1 PROCEEDINGS
2 Court decision cited at 645 New York Sub
3 Second 281. I think this was also a 1993
4 case.
5 There the plaintiff's status -- there
6 the Court found that the plaintiff's
7 status as illegal Alien by itself is
8 insufficient to rebut any claims for
9 future lost earnings.
10 The fact that the plaintiff is
11 deportable does not mean that his
12 deportation is imminent or indeed will
13 occur.
14 Therefore, the probative value of the
15 illegal status is far outweighed by the
16 prejudicial impact to the plaintiff.
17 In order to rebut, the defendant must
18 show more than the illegal status. Absent
19 that, the defendant will be precluded from
20 presenting to the jury evidence which
21 indicates the immigration status of the
22 plaintiff.
23 All right, the next issue deals with
24 the plaintiff's earning capacity. With
25 regard to documentary proof of the

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1 PROCEEDINGS
2 plaintiff's past employment status and
3 with regard to future employment status --
4 I'm sorry, future earnings ability.
5 I think this was also yours.
6 MS. SCOTTO: Your Honor, may we just
7 back up one second with respect to his
8 illegal status.
9 THE COURT: Um hum.
10 MS. SCOTTO: In the case of the Public
11 Administrator that the Court cited, the
12 Court allowed the defendant to bring out
13 the illegal status.
14 It says, it is for the jury to weigh
15 defense proof that defendant -- that
16 decedent would have earned those wages if
17 at all by illegal activity.
18 And also in the case of -- I'm not
19 sure if I'm saying it correctly --
20 Maderia, MADERIA, against Affordable
21 Housing which is 2004.
22 The Court held in the same fashion
23 that the illegal status was allowed to be
24 presented to the jury, if the plaintiff
25 was permitted to present the future lost

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2 earnings claimed.
3 THE COURT: I have to look at that then
4 because is that an Appellate Division
5 case?
6 MS. SCOTTO: That is from the District
7 Court Southern District, and Public
8 Administrator is from the First
9 Department.
10 THE COURT: But the Southern District
11 Court cases were at the Federal level.
12 We're dealing with the state level.
13 MS. SCOTTO: But they cite to Public
14 Administrator for their holding.
15 May I show you both?
16 THE COURT: All right. I'll hold out
17 on that aspect, but I'm not convinced that
18 I will allow you to discuss the
19 immigration status of the plaintiff, all
20 right.
21 Okay, so I'll hear you with regard to
22 earnings. Lost earnings.
23 MS. COTTES: Defendant National
24 Equipment also moves to preclude any
25 evidence as to future lost earnings of

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1 PROCEEDINGS
2 this plaintiff primarily because --
3 THE COURT: Let's just take it with
4 the past earnings first and then we'll
5 move to because I'm going to be next going
6 into the future lost earnings of that.
7 All right, because you're also going
8 to be suggesting that we're not on notice
9 based on future lost earnings, correct?
10 Because it wasn't pled.
11 MS. COTTES: Yes, that's the basis of
12 the future lost earnings portion.
13 THE COURT: Let's just take it with
14 regard to past lost earnings then.
15 MS. COTTES: The past lost earnings I
16 was seeking to preclude based upon Hoffman
17 and the Appellate Division case which
18 followed Hoffman since Hoffman came down
19 based upon his illegal status.
20 THE COURT: Okay, that was the basis of
21 your objection with regard to past
22 earnings?
23 MS. COTTES: Yes.
24 THE COURT: Okay.
25 Miss Scotto?
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1 PROCEEDINGS
2 MS. SCOTTO: I had the same
3 objections, Your Honor.
4 THE COURT: Okay. Well, based upon my
5 view of the cases that we just discussed,
6 that would not preclude his putting forth
7 a claim for lost earnings.
8 We also discussed yesterday, and I
9 wasn't sure if there would be any proof of
10 lost earnings separate and apart from the
11 plaintiff's testifying with regard to lost
12 earnings, this I'm talking about with
13 regard to past lost earnings so Mr. Durst
14 --
15 MR. DURST: We will present documentary
16 proof of earnings which I think is what we
17 were discussing yesterday. We will
18 produce documentary proof of lost earnings
19 which my recollection is the case law
20 requires and we do have that.
21 THE COURT: You do have what ?
22 MR. DURST: The documentary proof. We
23 have pay stubs from two different places.
24 We also have the records at the Workers
25 Compensation Board which evaluate his lost

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2 earnings based on the employment records
3 submitted to them by the Ferrara Foods and
4 they actually reached an average wage
5 which they awarded him based on those
6 documentary submissions from Ferrara to
7 Workers Comp. So we have two independent
8 sources of information confirming the
9 plaintiff's testimony.
10 THE COURT: All right, with regard to
11 then documentary proof of the plaintiff's
12 lost earnings, so long as there is
13 documentary proof of his lost earnings,
14 the Court will permit that to be put
15 before the jury for them to assess what
16 the lost earnings claim is, and in that
17 instance I cite Saint Hilaire, HILAIRE
18 verses White. 305, AD Second, 209. First
19 Department, 2003.
20 Now with regard to claims for future
21 lost earnings, Miss Cottes, you had a
22 motion in limine with regard to that?
23 MS. COTTES: Yes, Judge. The
24 plaintiff should be precluded from seeking
25 any future lost earnings or putting on any

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2 witnesses who testify as to future lost
3 earnings because he never pleaded or
4 claimed them.
5 Attached to the memorandum which I've
6 given you on this issue as Exhibits E and
7 F were Plaintiff's discovery responses
8 were within at most with respect to any
9 lost earnings he states lost earnings
10 claims to be -- amounts are claimed to be
11 in the amount of $42,642.46 for 266 weeks
12 of work missed since the day of the
13 accident.
14 Plaintiff, according to his own
15 pleadings, does not seek future lost
16 earnings and defendants will be
17 prejudiced, if you know, if forced to
18 proceed with the trial, when we were never
19 told that future lost earnings were being
20 sought.
21 For those reasons, future lost
22 earnings should be precluded in this case
23 since the pleadings do not reflect the
24 same.
25 MS. SCOTTO: Your Honor, my position

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2 is the same. Pleadings do not reflect any
3 claimed future lost earnings and the
4 plaintiff should be precluded.
5 THE COURT: Okay. Obviously, CPLR
6 3025B allows a party to amend at any time
7 by leave of Court and leave of Court
8 should be freely given when just.
9 In this instance, while you may not
10 have gotten specific pleadings with
11 reference to future earnings, you did,
12 notwithstanding that, fully examined the
13 plaintiff at an EBT where you covered all
14 issues relevant to his employment. You
15 examined the plaintiff with regard to his
16 skills and training, you examined the
17 plaintiff with regard to any income which
18 he had earned and you examined the
19 plaintiff with regard to his educational
20 background.
21 Moreover, the plaintiff served a
22 supplemental response indicating that he
23 intended to call a vocational
24 rehabilitation expert with regard to the
25 plaintiff's ability to obtain employment

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2 in the future.
3 Defendants, you, yourselves also
4 retain vocational rehabilitation expert
5 with regard to the plaintiff's ability to
6 obtain employment in the future.
7 Therefore, you are on notice with
8 regard to the plaintiff's prospective
9 claims with regard to his ability to work
10 and gain employment and, therefore, there
11 is no prejudice to you, the defendant.
12 This is not a complete and total surprise.
13 So, in view of the fact that leave to
14 amend pleading should be freely given, and
15 the fact that you did examine the
16 plaintiff exhaustively on your EBT,
17 there's no prejudice to the defendant in
18 this regard and I cite the case of SAHDALA
19 verses New York City Health and Hospital
20 Corporation, cited at 251, AD Second, 70.
21 First Department 1998.
22 All right, we next move to the
23 defendant's motion to preclude the
24 testimony of a liability expert.
25 MS. SCOTTO: That was my application,

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2 Your Honor.
3 THE COURT: Okay.
4 MS. COTTES: I would join in it to the
5 extent 3101D Disclosure as to the
6 liability expert was insufficient. So
7 based upon that the plaintiff should be
8 precluded.
9 THE COURT: Okay.
10 MS. SCOTTO: Your Honor, the
11 plaintiff's liability expert Igor Paul
12 provided plaintiff counsel -- provided
13 expert witness disclosure. There's no
14 report that was annexed to it. And what it
15 states is, if I may quote from it, Your
16 Honor:
17 "The gate to the dough mixer lacked
18 interlocks to automatically turn offer the
19 turning of the augers when the door was
20 opened.
21 The guarding for the opening leading
22 into the point of operation was
23 inadequate, as a result -- there's only a
24 couple more sentences -- failure to
25 adequately interlock the drive it prevents

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2 the mixer from operating when the gate or
3 guard was off or open violated rules,
4 regulations and guidelines applicable to
5 dough mixers dated back to the New York
6 Industrial Code 1929 and subsequent
7 Industrial Codes, rules, regulations,
8 Ansi, ANSI, regulations and OSHA
9 standards.
10 This is a very skeletal expert
11 witness disclosure. It basically says
12 nothing. He doesn't cite to the section of
13 OSHA, Ansi or Industrial Code that he
14 seeks to introduce and, in fact, OSHA and
15 the industrial code only apply to
16 employers which is my client, the
17 third-party defendant, and the plaintiff
18 has no direct claim against my client only
19 against the defendant National Equipment.
20 These codes don't apply to a distributor
21 or seller of the product. They only apply
22 to the employer.
23 He did go further with respect to
24 OSHA. Should I save that argument?
25 THE COURT: Yeah, that's another

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2 aspect.
3 Okay. All right, Mr. Durst.
4 MR. DURST: Your Honor, papers that
5 were submitted in the motion for summary
6 judgment and the record on appeal and
7 appellate brief all indicated that the
8 plaintiff intended to call this witness
9 Professor Igor Paul and that he would
10 state that the failure to interlock the
11 guard was a defect and he would use as the
12 basis of that opinion his 35 years of
13 teaching at MIT, his knowledge of
14 standards and codes applicable to dough
15 mixers, and that the inadequate guarding
16 rendered the machine defective.
17 We don't intend to -- it seems to me
18 that that should be sufficient to apprize
19 the defendants of what the plaintiff's
20 claims of defect are.
21 And, furthermore, acting upon that --
22 this by the way was done back, I think, in
23 2000 -- they hired their own liability
24 expert.
25 MS. SCOTTO: No, we did not.

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2 MR. DURST: Well, third-party defendant
3 didn't. But the defendant did hire their
4 own liability expert and that liability
5 expert dealt with the same issues. So I
6 think the issues are quite clear.
7 THE COURT: Give me one second.
8 MR. DURST: I think the issues are
9 quite clearly presented as to what the
10 defect in the machine was.
11 By the way, the date of that expert
12 exchange was March 8th, 2001. And there is
13 a full curriculum vitae provided, as well.
14 By the way, the defendants requested
15 by letter dated May 2nd, a further
16 response because we had not provided them
17 with the full CV, I believe, at that time
18 and we did provide them with the full CV
19 and we did not receive any further
20 objection from them as to the 3101D
21 Disclosure.
22 MS. SCOTTO: Your Honor, may I be
23 heard?
24 It's not necessary for us to point out
25 all of the defects to plaintiff's counsel

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2 with respect to his expert witnesses'
3 disclosure, that's his responsibility. And
4 plaintiff's counsel mentioned in his
5 motion papers the motion for summary
6 judgment. There are no documents annex to
7 that motion for summary judgment from this
8 particular witness. There's nothing added
9 in the motion for summary judgment from
10 this Doctor Griffith.
11 MR. DURST: Doctor Paul.
12 MS. COTTES: Paul.
13 MS. SCOTTO: I'm sorry Doctor Paul. I
14 got them confused. Also the only alleged
15 defect that's mentioned in the plaintiff's
16 expert witness disclosure is this
17 interlock. But I believe plaintiff's
18 counsel also intends to introduce that the
19 machine had a defective tilting mechanism
20 which is not mentioned in this expert
21 witness disclosure and it's failure to be
22 mentioned should have that information
23 precluded, as well.
24 MS. COTTES: And I would add that the
25 fact that defendant went out and got their

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2 own liability expert has nothing to do
3 with the insufficiency of plaintiff's
4 3101D disclosure. In fact, we were
5 prejudiced because we had that much less
6 to give our expert to review. He was only
7 given a bear bones skeletal document which
8 said that the machine didn't have an
9 interlock as to what plaintiff's expert
10 was going to say and that as such his
11 report is, you know, that much less
12 detailed and he will be that much more
13 surprised on cross examination. We will be
14 surprised if or when plaintiff's expert
15 takes the stand.
16 MS. SCOTTO: Judge, up until today --
17 we're going to open today, I don't even
18 know what section of OSHA the Industrial
19 Code or Ansi plaintiff's counsel claims we
20 violated.
21 THE COURT: That's why opening
22 statements are very cursory. They're not a
23 full blown account of what will be shown
24 at trial. It's an overview. It's not a
25 blow by blow account. So based on what

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2 I've heard and as I understand 3101D is a
3 sum and substance, an overview, as well,
4 if you might, of what the expert
5 anticipates testifying to at trial.
6 Sorry, the fact that the expert did
7 not disclose the exact sections of the
8 Industrial Code, or OSHA, again I don't
9 see as prejudiced to the defendant because
10 the defendant also had an expert, a
11 liability expert come in and will be
12 calling a liability expert. So to the
13 extent that the both experts will be
14 discussing relevant standards in that
15 particular entry with regard to a dough
16 mixer, I have to believe that both experts
17 know which are the relevant statutes of
18 the Industrial Code of OSHA etcetera,
19 apply to a particular machine and the
20 particular machine is a machine
21 manufactured by Tonnaer.
22 THE COURT: So I cannot believe that
23 the defendant's expert does not know which
24 industry standards apply and which section
25 within the industry apply to this

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2 particular machine.
3 However, what I will do to make sure
4 that no one is prejudiced because I don't
5 see any prejudice, what I will do Mr.
6 Dunce -- sorry Duns.
7 MR. DURST: Durst.
8 THE COURT: Mr. Durst, sorry. Mr.
9 Durst, you will get your expert's
10 information with regard to the particular
11 section that he will be anticipating
12 elaborating on or touching upon in his
13 testimony. You will with all deliberate
14 speed convey that information to Miss
15 Cottes because Miss Cottes you're the one
16 who's getting the expert to come in.
17 MS. COTTES: Yes.
18 THE COURT: And relay that information
19 to Miss Cottes as soon as possible and by
20 as soon as possible I mean hopefully this
21 afternoon.
22 MR. DURST: Could it be tomorrow
23 morning because some of the records are
24 being subpoenaed here from the New York
25 State library. They are going to be

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2 arriving tomorrow.
3 THE COURT: Where is your expert?
4 MR. DURST: I can call him.
5 THE COURT: That's what I'm suggesting.
6 MR. DURST: Okay. Sure.
7 THE COURT: Call your expert, get that
8 information from your expert and I don't
9 know if your expert wants to speak with
10 Miss Cottes's expert that would be ideal.
11 But if you don't want to do that, then
12 you'll give Miss Cottes the relevant
13 statutes that apply in the industry to
14 this particular machine.
15 MR. DURST: Okay.
16 THE COURT: Miss Cottes, you will then
17 give that information to your expert.
18 Your expert is not -- we're not
19 anticipating hearing from him next week at
20 any rate, correct?
21 MS. COTTES: Monday afternoon he's
22 flying in so it's booked.
23 THE COURT: Everything is fluent
24 because again we don't know today what
25 tomorrow will bring given what's already

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1 PROCEEDINGS
2 happened today, all right. So let's keep
3 that, that's how the scheduling will
4 continue in place, all right. But at any
5 rate today being Tuesday that's more than
6 enough time for your experts to review
7 those particular sections. All right.
8 MS. SCOTTO: Your Honor, may I also --
9 THE COURT: Just one second.
10 MS. SCOTTO: Sorry.
11 THE COURT: Of course, Mr. Durst, your
12 expert will be relaying the particular
13 statutes of the particular codes?
14 MR. DURST: Yes, Your Honor.
15 THE COURT: And that information will
16 be turned over, as well?
18 THE COURT: Okay.
19 MS. SCOTTO: Your Honor, I just wanted
20 to address the issue.
21 THE COURT: I'm sorry, I just wanted
22 to cite the case of B-U-S-S-E verses Clark
23 Equipment Company, and Clark Equipment
24 Company verses Japan Airline Company,
25 Limited. That's at 182 AD Second, 525,

33
1 PROCEEDINGS
2 First Department. I neglected to include
3 the year. That's okay.
4 All right.
5 MS. SCOTTO: I wanted to address the
6 issue of the tilting mechanism. The claim
7 that the tilting mechanism was defective
8 or not working on the date of the
9 occurrence is not listed anywhere in the
10 plaintiff's expert witness disclosure. It
11 only talks about the safety grate on top
12 of the machine and in the absence of any
13 mention of the tilting mechanism in his
14 expert witness disclosure, we would be
15 prejudiced if the expert came in to talk
16 about that.
17 I'd ask that he be precluded.
18 THE COURT: Mr. Durst?
19 MR. DURST: The --
20 THE COURT: Where was that? Was that
21 ever disclosed anywhere along the lines?
22 MR. DURST: No because we're not
23 claiming it's a defect in the product that
24 was sold by National Equipment. The
25 tilting mechanism actually stopped working

34
1 PROCEEDINGS
2 about a month before the accident and
3 certainly it is an operative fact which
4 added up to why the plaintiff was injured.
5 There's no question that had it been
6 tilted, he would not have been standing on
7 a ladder to remove the dough from the
8 bowls and so that was something that is an
9 operative fact that it was not working.
10 We're not claiming that it was a
11 defect in the machine that was sold by the
12 defendant, although, that really was a
13 fact of poor maintenance or else they just
14 decided to use it that way. But we're not
15 claiming it's a defect in the machine sold
16 by the defendant.
17 THE COURT: All right.
18 MS. SCOTTO: Your Honor, if it's not a
19 defect in the machine that's sold, then
20 it's a matter of maintenance that's a
21 claim against my client which plaintiff's
22 counsel is not allowed to do. He can't
23 make out the case against my client the
24 third-party defendant because there is no
25 mention in the expert witness disclose.

35
1 PROCEEDINGS
2 I think he should be precluded.
3 THE COURT: That doesn't stop her from
4 bringing that out with regard to you.
5 Correct? Because Miss Cottes is
6 third-party plaintiff and she brought you
7 into this action for a reason.
8 MS. SCOTTO: That's correct, Your
9 Honor.
11 MR. DURST: And, Your Honor, I must say
12 that the fact that it couldn't tilt that
13 the tilting --
14 THE COURT: We're not belaboring that
15 point.
16 MR. DURST: Okay.
17 THE COURT: All right, next point is
18 your economist was precluded by a prior
19 order of Judge Thompson, correct?
21 THE COURT: Therefore, the vocational
22 rehab expert may not testify and we
23 discussed this at length yesterday.
24 MR. DURST: You mean the economist may
25 not testify.
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1 PROCEEDINGS
2 THE COURT: You don't have an
3 economist?
4 MR. DURST: He's precluded.
5 THE COURT: Correct. Your vocational
6 rehab expert may not testify with respect
7 to the quantity with regard to any
8 earnings.
9 MS. COTTES: Your Honor, I would point
10 out that there are numbers in his
11 employability expert report.
12 THE COURT: He may testify to issues
13 affecting the employability or lack
14 thereof of a one-handed individual for all
15 intense and purposes verses a two-handed
16 individual.
17 The moment he starts going into
18 quantification of earning capacity which
19 is really in the area of the expertise of
20 an economist, he will be stopped.
21 MR. DURST: But the defense vocational
22 rehabilitation guy says that he could of
23 -- he can earn 20 to $25,000.
24 THE COURT: If they open the door,
25 then you go through it.

37
1 PROCEEDINGS
2 MR. DURST: It's already in their
3 report.
4 THE COURT: If they open the door on
5 the stand, you go through it.
6 MS. COTTES: He hasn't testified yet.
7 MR. DURST: But he may testify first.
8 THE COURT: If he opens the door, you
9 go through it and you may have an
10 opportunity to call him back.
11 MR. DURST: But --
12 THE COURT: There we stand.
13 Next point. All right, motion in
14 limine to preclude testimony of Marguerite
15 Peters.
16 This was by both Miss Cottes and Miss
17 Scotto, right?
18 MS. COTTES: National Equipment moves
19 to preclude the testimony of a woman who
20 was allegedly flying in from Holland. Her
21 name is Marguerite M-A-R-G-U-E-R-I-T-E.
22 Tonnaer-Peters.
23 Her testimony should be precluded
24 because according to the single piece of
25 information we've received on Miss

38
1 PROCEEDINGS
2 Tonnaer, which is a one half page
3 affidavit, she has no personal knowledge
4 of Machine Fabriek Tonnaer, MV, alleged
5 manufacturer of the dough mixer involved
6 in the accident.
7 In her affidavit she says to her
8 knowledge, and I believe that National
9 Equipment was the United States
10 distributor for Machine Tonnaer Machines,
11 TTS, here in her affidavit which is
12 attached to my memorandum as Exhibit A,
13 that she has no personal knowledge of her
14 father-in-law's business.
15 She states in her affidavit that her
16 father-in-law's business which was Machine
17 Fabriek Tonnaer, went out of business in
18 1974 when she was, apparently, a very
19 small child or not born at all, and that
20 her father-in-law has been dead for
21 approximately 13 years. He died in 1991.
22 Apparently, she never worked for his
23 company. She had never made a search of
24 records of his testimony and her
25 information which she will apparently come

39
1 PROCEEDINGS
2 into this trial to testify is taken
3 entirely from her husband, so it will be
4 based purely on hearsay and not on her own
5 personal knowledge. As such her testimony
6 will only be speculative, it will be
7 conclusory.
8 Finally, her testimony is irrelevant,
9 since, even if she does testify that
10 National Equipment was the distributor for
11 Machine Fabriek in the United States, she
12 has no knowledge of what National
13 Equipment did with the machine. In other
14 words, she cannot get the machine from
15 National Equipment to third-party
16 defendant Ferrara Foods.
17 At a minimum, if the Court is inclined
18 to deny this motion, we would ask for an
19 opportunity to voir dire Miss Tonnaer
20 before she takes the stand in front of the
21 jury and voir dire her outside of the
22 presence of the jury to see what her
23 knowledge is based upon whether it's
24 personal knowledge or whether it's based
25 upon just conversations with --

40
1 PROCEEDINGS
2 conversations with her husband or an
3 affidavit which was clearly drafted by the
4 plaintiff's counsel and not drafted by
5 herself.
6 THE COURT: Okay, Miss Scotto.
7 MS. SCOTTO: Ferrara Foods also joins
8 in that application.
9 I would ask, in addition to being able
10 to voir dire her outside of the presence
11 of the jury should she come with that, we
12 be permitted with an opportunity to
13 examine the documents that she has. But
14 she should be precluded from using them
15 because we have never seen them before. It
16 will be shown to us for the first time
17 during the middle of the trial and should
18 the Court be inclined to allow her to
19 testify about the documents, that we be
20 permitted an opportunity to voir dire her
21 outside the presence of the jury with the
22 documents.
23 THE COURT: Mr. Durst.
24 MR. DURST: I have -- she's a nonparty.
25 I have no idea. I've never met her

41
1 PROCEEDINGS
2 before. And I've called her to testify
3 with regard to her knowledge and I really
4 don't know if she is -- she'd bring
5 anything or not, I have no knowledge of
6 that one way or the other. But certainly
7 if she has something I'll provide it to
8 you as soon as I see it, you know, which
9 she's just a nonparty witness who I've,
10 you know, requested that she come here.
11 MS. COTTES: Well, I would just add
12 that demand was made more than once
13 throughout this litigation which began, as
14 you know, in 1995, for any and all
15 documentary evidence linking National
16 Equipment to this machine. So Marguerite
17 Tonnaer should not be permitted to refer
18 to any documents she walks into this
19 courtroom during this trial with.
20 You should be precluded -- plaintiff's
21 counsel should be precluded from asking
22 her questions about any documents she
23 brings which links National Equipment to
24 the machine. We will be severely
25 prejudiced, as not only would of if we

42
1 PROCEEDINGS
2 reviewed them years ago, the case should
3 of taken a different direction or if
4 violated in a different way, should we had
5 different documents.
6 I would ask the Court at a minimum to
7 preclude her any documents -- from any
8 reference to any documents she brings with
9 her to this trial which we have not been
10 provided with at an earlier date. Simply
11 giving us copies during the trial and
12 letting us review them is not -- does not
13 cure the prejudice that, you know, will be
14 incurred by having to confront this
15 witness on documents which we're seeing
16 for the first time at this trial.
17 THE COURT: Anything further from you,
18 Miss Scotto?
19 MS. SCOTTO: No, Your Honor.
20 THE COURT: All right, based upon my
21 review of the affidavit as annexed to Miss
22 Cottes' motion in limine, I see nothing in
23 this affidavit from Miss Peters which is
24 unequivocal. I have nothing in this
25 affidavit which leads me to believe that

43
1 PROCEEDINGS
2 she never spoke with her father or is
3 unaware of the father-in-law's business.
4 To the contrary, Miss Peters' affidavit
5 indicates that she is the principle in
6 Tonnaer Machines BV. Her company sells
7 dough mixing machines. Her father-in-law
8 was the owner of Machine Fabriek, Tonnaer
9 N.V., which also sold dough mixing
10 machines.
11 She further indicates in this
12 affidavit that I am familiar with the
13 business of my father-in-law. I am in the
14 same business. I know that Machine
15 Fabriek Tonnaer, T-O-N-N-A-E-R, N.V., had
16 a business relationship with National
17 Equipment Corporation in the State of New
18 York. They distributed products for
19 Machine Fabriek Tonnaer such as in dough
20 mixers.
21 To my knowledge, National Equipment
22 Corporation is the only business in the
23 United States that had a business
24 Relationship with Machine Fabriek Tonnaer,
25 N.V.
44
1 PROCEEDINGS
2 National Equipment Corporation was the
3 US Distributor for machines manufactured
4 by Machine Fabriek Tonnaer, N.V.
5 So not only do I find that to be
6 unequivocal language. This language, this
7 affidavit, if it were prepared by an
8 attorney, and you attorneys, I'm sure,
9 prepare affidavits for your witnesses all
10 the time, it was nonetheless sworn to and
11 subscribed by Miss Peters. She's not
12 equivocal at all. She states that her
13 knowledge is based upon her knowing the
14 business.
15 In deed, the Appellate Division in
16 it's decision also found her statements to
17 be entirely unequivocal. So to the extent
18 that she states that she knows the
19 business of Tonnaer, N.V., she will be
20 allowed to testify with regard to what her
21 knowledge is and how she gained her
22 knowledge.
23 All right, if there are any documents,
24 certainly National Equipment Corporation
25 will be in the best position to know what

45
1 PROCEEDINGS
2 those documents are because according to
3 Miss Peter's affidavit National Equipment
4 Corporation was distributor for Machine
5 Fabriek's products. So National Equipment
6 would be in the best position to know what
7 the documents are which relate to that
8 particular machine as the distributor in
9 the United States of Machine Fabriek
10 Equipment.
11 MS. COTTES: We have no documents. My
12 concern is that we are going to be
13 surprised.
14 THE COURT: The fact that you have no
15 new documents does not mean that you have
16 not had documents at one time and you are
17 in the best position to know you
18 distribute for this manufacturer. So, if
19 she comes in with documents relevant to
20 this particular machine, relevant to
21 National's status as the distributor of
22 those machines in advance of her
23 testimony, I will allow both Miss Cottes
24 and Miss Scotto to review quickly, review
25 those documents.
46
1 PROCEEDINGS
2 So rather than allow you to review
3 those documents in advance of cross, I
4 will allow you to review those documents
5 in advance of her getting on the stand.
6 All right.
7 Next with regard to and we need to
8 move along because it's almost lunch time,
9 I'm not keeping the Court Reporter.
10 The issue with regard to the OSHA
11 Report.
12 MS. SCOTTO: That was my application,
13 Your Honor.
14 THE COURT: Okay.
15 MS. SCOTTO: Plaintiff's counsel
16 exchanged part of the OSHA documents with
17 me several days before the trial started.
18 The OSHA documents contain many blanks in
19 them and especially with respect to who
20 made statements.
21 There are claims that people from
22 Ferrara made statements to the OSHA
23 Inspector and, in fact, the OSHA Inspector
24 is not even identified on that OSHA
25 Report.
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1 PROCEEDINGS
2 The report itself should not be
3 admissible because it's not a business
4 record. The author or the author of the
5 document itself is not even identified and
6 the people who gave the information to the
7 OSHA Inspector are not identified, as
8 well. So I don't know if those people had
9 authority to speak on behalf of Ferrara
10 with any information that they provided
11 because we can't identify them. It could
12 have been a laborer that gave that
13 information. And I had also requested that
14 the plaintiff or anyone be precluded from
15 questioning Ed Scoppa, SCOPPA, the witness
16 on behalf of Ferrara any information about
17 the OSHA investigation.
18 THE COURT: Let's stick with this
19 particular issue first.
20 MS. SCOTTO: Okay, sorry.
22 MS. SCOTTO: Yes, that was it, Your
23 Honor.
24 THE COURT: All right. Were you adding
25 anything to this, Miss Cottes?

48
1 PROCEEDINGS
2 MS. COTTES: No.
3 THE COURT: Okay, Mr. Durst?
4 MR. DURST: We would not be offering
5 the documents.
6 THE COURT: Mr. Durst, the reporter is
7 over here. You need to raise your voice
8 and look up so that she can hear you.
9 MR. DURST: Sorry. We will not be
10 offering the documents as documentary
11 evidence because I think we can't lay a
12 foundation for them. But we would call the
13 OSHA Inspector who prepared the documents
14 and have him testify as to his factual
15 observations and his factual activities
16 and that's what we would be asking to do
17 with -- well.
18 THE COURT: Okay.
19 MS. SCOTTO: Your Honor, the OSHA
20 Inspector was never designated as a
21 witness. The Preliminary Conference Order
22 required the plaintiff to disclose all of
23 his witnesses and I heard about this
24 witness for the first time yesterday. He
25 was never disclosed to me and we would be

49
1 PROCEEDINGS
2 prejudiced.
3 MR. DURST: Your Honor, they -- the
4 OSHA Inspector came to their plant back in
5 1995 and issued certain OSHA violations
6 which were not redacted at that time, put
7 them in the hands of the third-party
8 defendant in 1995. They had an opportunity
9 to contest the violations. They could --
10 they had certainly much more information
11 about those OSHA violations than we did.
12 We obtained these public documents and
13 through our investigation identified this
14 person. The third-party defendant who was
15 given the actual violation certainly could
16 of done the same thing.
17 MS. SCOTTO: Any OSHA findings are not
18 relevant here because whatever violations
19 the jury find with respect to OSHA, if
20 that is presented to them, is for the jury
21 to decide not for them to hear what OSHA
22 decided.
24 the, OSHA document, the report itself, if
25 you are not able to lay a foundation for

50
1 PROCEEDINGS
2 it, obviously, cannot come in.
3 If you are able to find the maker of
4 that document who has knowledge with
5 regard to the incident in question that is
6 competent and he will present evidence
7 with regard to the issues before the jury,
8 so that witness if he can, if the
9 document that you do have which is a
10 redacted document serves to refresh his
11 recollection with regard to a particular
12 investigation, then the Court will allow
13 him to testify. All right.
14 MS. SCOTTO: Your Honor, even if he
15 has unredacted copy and that's all he has.
16 THE COURT: As I said, if that
17 refreshes his recollection as to what
18 happened, he may testify with regard to
19 what happened when he investigated. It is
20 competent and relevant to the issues at
21 hand. All right. However, please,
22 understand he will not be allowed to
23 testify with regard to remedial repairs
24 after the accident. I don't believe in
25 reviewing that particular report that he

51
1 PROCEEDINGS
2 had anything to do with remedial repairs.
3 All right, we have a quick two minutes
4 left for the grand finale, all right. The
5 grand finale is the motion to preclude
6 Miss Manguel from testifying regarding
7 statements made by the third-party
8 defendant's manager.
9 MS. COTTES: National moves to
10 preclude the testimony of plaintiff's
11 investigator Vanessa Manguel,
12 M-A-N-G-U-E-L, for several reasons:
13 The first preliminary issue is Miss
14 Manguel was never disclosed as a witness.
15 We were never given disclosure of her
16 under the CPLR.
17 Now, throughout this litigation in
18 initial demands, more specifically,
19 interrogatories demands which were served
20 on plaintiff's counsel on July 28th, 1995,
21 and paragraph 97 of those demands
22 plaintiff's counsel was asked to disclose
23 and identify with an address every witness
24 known to plaintiff to have any knowledge
25 regarding the facts and circumstances

52
1 PROCEEDINGS
2 surrounding the accident or any of the
3 allegations claimed.
4 Thereafter, in a preliminary
5 conference order dated January 3rd, 1996,
6 plaintiff was told to exchange the name
7 and address of all and addresses of all
8 witnesses by February 3rd, 1996. We never
9 received the name or the address of
10 Vanessa Manguel.
11 The first time we saw Vanessa
12 Manguel's name was when it was attached to
13 an affidavit which was signed by her in
14 opposition to the motion for summary
15 judgement. Miss Manguel's address was
16 never provided.
17 We have been told since we started the
18 trial that Miss Manguel also has notes
19 which were never given to us. Miss
20 Manguel's notes would have been subpoenaed
21 by my law firm had we had an address for
22 her. Had we been given an address for
23 her, we would have subpoenaed her as a
24 witness and deposed her on what alleged
25 inconsistencies she was going to claim

53
1 PROCEEDINGS
2 both in the motion in opposition to our
3 motion and at trial had we known she was
4 going to be called as a witness at trial.
5 So the first reason her testimony
6 should be precluded which is she was never
7 properly disclosed as a witness. We were
8 never given an address from her.
9 Secondly, Miss Manguel is being called
10 at this trial potentially under two
11 theories:
12 First, plaintiff's counsel will seek
13 to admit her testimony as a prior
14 inconsistent statement.
15 Ed Scoppa, who was former Vice
16 President of Ferrara Foods, allegedly made
17 a statement to Miss Manguel back in 1995
18 that the machine involved in the accident
19 was purchased from my client National
20 Equipment. Thereafter, at a later
21 deposition he testified that he was not
22 sure where he got the machine.
23 First, of all to use Miss Manguel's
24 testimony as a prior inconsistent
25 statement in that fashion to impeach his

54
1 PROCEEDINGS
2 own witness plaintiff's counsel will be
3 using an improper means of impeachment.
4 That's assuming he's going to read Edward
5 Scoppa's transcript into evidence and then
6 call Miss Manguel to impeach his own
7 witness. That's improper use of
8 impeachment tool.
9 Secondly, it's not an inconsistent
10 statement made by Edwin Scoppa because (a)
11 in his deposition he's specifically asked
12 about this inconsistency and he deals with
13 it.
14 In other words, Miss Manguel's
15 testimony as to any inconsistencies isn't
16 needed because at his deposition Mr.
17 Scoppa was asked when was the machine
18 purchased? Answer, probably somewhere in
19 the late '70s. Question, who was it
20 purchased from? Answer, we are not a
21 hundred percent sure at this point. We
22 cannot find any records.
23 And then he is asked, do you recall
24 telling someone that the machine had been
25 purchased from National Equipment? And he

55
1 PROCEEDINGS
2 deals with that inconsistency right at his
3 deposition and the answer is, I believe,
4 yes, at the time we did purchase a number
5 of pieces from National. Pieces of
6 equipment. So I just assumed that this
7 was one of those pieces but then we
8 couldn't find any records.
9 So essentially he ends up testifying
10 that he's not a hundred percent sure where
11 he got the machine but he does deal with
12 the inconsistency allegedly made to Miss
13 Manguel made back in 1995.
14 Lastly, to the extent plaintiff's
15 counsel is going to seek to admit Miss
16 Manguel's testimony as an admission of a
17 party. It is well settled in New York
18 that qualifies as admission for purposes
19 of qualifying under the hearsay rule, a
20 statement must be unfavorable to the
21 position of the party who made it. And I
22 refer the Court to Read, R-E-A-D, McCord.
23 M-C-C-O-R-D, 160 NY 330, 57, NE, 1123.
24 Court of Appeals 1899. People verses
25 Mondin (ph), 492 NYS 2nd, 344. 1985. And

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1 PROCEEDINGS
2 there Fisch, FISCH, on Evidence, section
3 790 was cited.
4 It's well settled that admissions must
5 be unfavorable. It is well settled that
6 an admission must be unfavorable to the
7 position of the party who makes the
8 admission.
9 Here Edward Scoppa worked for and is a
10 corporate officer of third-party defendant
11 Ferrara Foods, not my client National
12 Equipment, and clearly his alleged
13 statement that the machine was bought from
14 National Equipment is against the interest
15 of my client and, therefore, it's not
16 admissible as an admission in this case.
17 Finally, Vanessa Manguel has no sworn
18 or subscribed statement from Edward
19 Scoppa. She has nothing signed by him or
20 in his handwriting.
21 And as a second argument, I would ask
22 that any notes of Vanessa Manguel be
23 precluded. She should not be able to refer
24 to them on the witness stand since they
25 were never disclosed previously.

57
1 PROCEEDINGS
2 Plaintiff's counsel should not be
3 permitted to question her on them, and any
4 mention of them should be precluded.
5 MS. SCOTTO: I join in the request,
6 Your Honor. I just want to add very
7 briefly that there were demands made for
8 opposing party statement whether they're
9 written or they're oral and if Miss
10 Manguel has notes concerning a prior oral
11 inconsistent statement, they should have
12 been exchanged and they were not during
13 the course of discovery.
14 MR. DURST: Your Honor, I take these
15 arguments are of the Appellate Court
16 arguments almost word for word. And so I
17 think the law of the case is that they are
18 admissions, they are prior inconsistent
19 statements and.
20 Furthermore, with regard to the notes.
21 Those notes are present recollection
22 recorded or past recollection recorded.
23 She can use those notes not just for
24 refreshing her recollection but as past
25 recollection recorded. So those notes then

58
1 PROCEEDINGS
2 supplement her current testimony and I
3 have case law on that subject, Your Honor.
4 So the notes are not the testimony but
5 they supplement the testimony.
6 Those notes, of course, were never
7 called for. She is a nonparty witness. We
8 certainly disclosed her name back in 2001
9 in opposition to the motion for summary
10 judgement. We disclosed the substance of
11 what she was going to say and the notes
12 have never been requested and they were
13 not notes, they were notes of the
14 third-party witness. Nor would they be
15 discloseable absent from us.
16 But we have provided them to the
17 defendants and they now have copies of
18 those notes. They're fairly brief and they
19 basically supplement exactly what she
20 testified to in her affidavit.
21 THE COURT: In this instance, I will
22 grant the application by defendants with
23 regard to precluding Miss Manguel's
24 testimony.
25 One, based upon the EBT testimony of

59
1 PROCEEDINGS
2 Mr. Scoppa as disclosed by Miss Cottes.
3 There's no characterization of that
4 statement as inconsistent.
5 Secondly, in order to even assume for
6 the moment that it were an inconsistent
7 statement, you would have to have the
8 declarant on the stand testify with regard
9 to a statement that he is making in court
10 in order to impeach with a prior
11 inconsistent statement.
12 From what I gather, you are not
13 calling Mr. Scoppa so you cannot use that
14 as a prior inconsistent statement.
15 With regard to admissions. Although
16 plaintiff did -- third-party defendant,
17 rather, did indicate yesterday off the
18 record that Mr. Scoppa not only is the
19 emergency manager of the company but also
20 is an officer, that being a vice president
21 of the company and, therefore, he had --
22 he was indeed someone who had authority to
23 bind the third-party defendant such that
24 he was entitled to be considered a
25 speaking agent for the third-party

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1 PROCEEDINGS
2 defendant, in this instance, that
3 vicarious admission cannot be used by the
4 plaintiff against the defendant.
5 If the defendant wanted to use it
6 against the third-party defendant, that
7 would be different. But in this instance
8 the plaintiff may not use the third-party
9 defendant's admission to bind the
10 defendant. So in that instance that
11 statement does not come in for that
12 reason.
13 Notwithstanding the characterization
14 of the statement by the Appellate Division
15 as an admission by a party to a material
16 fact as a prior inconsistent statement,
17 because I do not have the benefit of the
18 submissions which were provided the
19 Appellate Division on the summary judgment
20 motion. I cannot say when reading this
21 particular writing whether they
22 anticipated that was going to be a
23 statement which would be attacked by the
24 defendant against the third-party
25 defendant, because if there were, and I

61
1 PROCEEDINGS
2 think it may had been a defendant's
3 summary judgment motion, so had the
4 Appellate Division countermands a scenario
5 such as I have now before me, I don't
6 believe the ruling would have been quite
7 the same.
8 But again, the Court is at a loss
9 because I do not have the summary judgment
10 motion that the Appellate Division was
11 reviewing.
12 All right, we have to end it here
13 because we are way past luncheon recess
14 and my court reporter, I know, I can look
15 at her, she's starving. So I am not going
16 to keep her.
17 Any other issues, and I believe there
18 may have been other issues, we'll have to
19 resolve, if we need to address them,
20 immediately, once we regroup for the
21 trial, then we'll take them up at that
22 point. All right. But at this point I'm
23 going to thank you all and we're taking
24 our luncheon recess.
25 MS. COTTES: Thank you, Judge.

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1 PROCEEDINGS
2 MS. SCOTTO: Thank you, Judge.
3 MR. DURST: Thank you, Judge.
4 (Whereupon, the case was set aside, as
5 other matters are called, to be recalled
6 later, as the court takes its luncheon
7 recess.)
8 A F T E R N O O N S E S S I O N.
9 MS. SCOTTO: The case of Cirro
10 Rodriguez, plaintiff, against National
11 Equipment Corporation, defendant, and
12 National Equipment third-party plaintiff
13 against Ferrara Foods and Confection,
14 Inc., third-party defendant.
15 MR. DURST: John E Durst. 285 Broadway.
16 MS. COTTES: Rose Cottes defendant
17 National Equipment Corporation.
18 MS. SCOTTO: Francine Scotto
19 third -party defendant.
20 THE COURT OFFICER: Come to order.
21 THE COURT: Have a seat.
22 THE COURT OFFICER: Jury entering.
25 seats.)
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1 PROCEEDINGS
2 THE COURT: Okay. Good afternoon,
3 ladies and gentlemen.
4 THE JURORS: Good afternoon.
5 THE COURT: Oh, this is a rough crowd.
6 Let's try that again. Good afternoon,
9 THE COURT: Much better. Everyone have
10 a seat. Welcome back everyone. I hope
11 everyone had an enjoyable time waiting for
12 us to resume this afternoon.
13 As I indicated counsel and the Court
14 were feverishly involved in legal issues
15 which affected the Court and counsel but
16 did not concern you so whereever possible
17 you will not be waiting around in the
18 courtroom when counsel and the Court are
19 dealing with legal issues. But I will
20 continue to inform you of such with my
21 opening which I am going to begin just
22 now.
23 Now we have with us alternate number
24 three, and that's Mr. Caputo, okay.
25 Welcome Mr. Caputo.

64
1 PRELIMINARY INSTRUCTIONS
2 All right, ladies and gentlemen. I'm
3 sure it seems like a very, very long time
4 since you were actually all last here as a
5 group separate and apart from this
6 morning. But we're about to begin the
7 trial of which you've heard just a little
8 during the course of voir dire.
9 Before we start, however, there are
10 certain instructions which you need to
11 have in order for you to understand what
12 you will hear and see but more importantly
13 how you should conduct yourselves during
14 the course of the trial.
15 Now the party who brings the lawsuit
16 is called the plaintiff. And in this case
17 the plaintiff is Mr. Cirro Rodriguez. Mr.
18 Rodriguez is represented by his attorney
19 Mr. John Durst whom you've met during the
20 course of voir dire.
21 The party against whom the suit is
22 brought is called the defendant. And in
23 this case the defendant is National
24 Equipment Corporation, that is a corporate
25 entity and not an individual. That

65
2 defendant is represented by Miss Rose
3 Cottes, again whom you've met during voir
4 dire.
5 Now this case also involves a
6 third-party. Now the defendant claims that
7 a third-party in this instance Ferrara
8 Foods and Confection Incorporated is
9 responsible for the occurrence that has
10 brought us here for this action and has
11 brought an action against that
12 third-party.
13 In this action, as I said, the
14 third-party defendant is Ferrara Foods and
15 Confection Incorporated. They're
16 represented by their attorney Miss
17 Francine Scotto whom you have, obviously,
18 you've met before.
19 Now, in this case you will decide the
20 question of liability. That is which party
21 or parties is or are responsible for the
22 occurrence which brings them to court.
23 You will also decide the question of
24 damages. That is what amount of money, if
25 any, will fairly and justly compensate the

66
2 plaintiff for loss resulting from the
3 injuries he sustained.
4 When I've completed these opening
5 instructions to you, the attorneys will
6 make an opening statement in which each
7 one of them will outline what they
8 anticipate proving at trial.
9 Now, the purpose of the opening
10 statement is to tell you about each
11 party's claim so that you'll have a better
12 understanding of the evidence as it is
13 introduced.
14 However, what is said in such
15 statements is not evidence. The evidence
16 upon which you will base your decision
17 will come from the testimony of witnesses
18 either here in the courtroom or from their
19 testimony in examinations before trial or
20 in the form of photographs, or documents
21 or any other exhibits which may be
22 introduced into evidence.
23 Plaintiff makes an opening statement
24 first followed by the defendant.
25 After the open statement, plaintiff

67
2 will introduce evidence in support of his
3 claim. Normally a plaintiff must produce
4 all of his witnesses and complete his
5 entire case before the defendant
6 introduces any evidence. Although there
7 are exception to that rule and they're
8 made in order to accommodate a particular
9 witness, but I will inform you ladies and
10 gentlemen when we are making an exception
11 to that general rule.
12 After plaintiff has completed the
13 introduction of all of his evidence, the
14 defendant may present witnesses and
15 exhibits. Although the defendant is not
16 obligated to present any evidence or call
17 any witnesses.
18 If defendant does, plaintiff may then
19 be permitted to offer additional evidence
20 for the purpose of rebutting the
21 defendant's evidence.
22 Each witness is first examined by the
23 party who calls that witness to testify,
24 that is called direct examination and then
25 the opposing party is permitted to

68
2 question the witness, that is called cross
3 examination. And, thereafter, we may have
4 redirect examination or re-cross
5 examination. But let me underscore this
6 point, we will never, never, never, never,
7 ever have reredirect or rerecross. Does
8 everyone understand that?
9 THE JURORS: Yes.
10 MS. SCOTTO: Yeah.
11 THE COURT: Okay.
12 Now, during the trial you may hear an
13 attorney from either the plaintiff or the
14 defendant or the third-party defendant
15 read portions of a document which they may
16 refer to interchangeability as an
17 examination before trial, they may refer
18 to it as an EBT or they may refer to it as
19 a deposition. It all refers to the same
20 item.
21 Now at some point before the trial
22 began, the plaintiff and/or defendant
23 and/or a witness under oath answered
24 certain questions put to them by the
25 attorneys for plaintiff and/or defendant.

69
2 A stenographer, such as the one you
3 see present in the Court, recorded the
4 questions and answers and then transcribed
5 them into a document which either the
6 plaintiff and/or the defendant and/or a
7 witness may later have reviewed and then
8 signed before a notary public.
9 The portions of the transcript of that
10 examination before trial that you may hear
11 are to be considered by you as if the
12 plaintiff and/or the defendant and/or the
13 witness were actually testifying from the
14 witness stand.
15 Does everyone understand that? Yes?
16 You with me? Yes?
17 THE JURORS: Yes.
18 THE COURT: Okeydokey. That's how I
19 know you're awake. All right, ladies and
20 gentlemen. And alive.
21 Now, all right. At times during the
22 trial an attorney may object to a question
23 or to the introduction of an exhibit or
24 make motions concerning legal questions
25 that apply to the case.

70
2 Arguments in connection with such
3 objections and/or motions will be made out
4 of you the jury, out of your presence and
5 that is because we judge different things
6 and already, ladies and gentlemen, as you
7 already noted counsel and the Court were
8 engaged in legal issues before you came
9 into the proceedings on Friday. We were
10 engaged with legal issues this morning.
11 We were engaged in legal issues and we
12 will continue to be engaged in legal
13 issues because as I said we judge
14 different things.
15 You are the sole and exclusive judge
16 of the facts. I, on the other hand am the
17 sole and exclusive judge of the law. So
18 whereever there are issues regarding the
19 law, counsel and the Court will take them
20 up separate and apart from you and out of
21 your presence.
22 Now because of the configuration of
23 this particular courtroom, that is the
24 courtroom is in the middle in between your
25 jury room, which is in the back, we share

71
2 a continuous wall, and that means, ladies
3 and gentlemen, you may not believe this
4 but we can actually hear you in the jury
5 room when you're having a good time back
6 there, and we appreciate that you have a
7 good time because we encourage our jurors
8 to bond and become friendly with each
9 other, all right.
10 And sometimes there have been
11 instances where a juror, single jurors
12 have met single and willing to mingle and
13 they've met and they've gone on to be
14 closer friends, all right. So we encourage
15 your being friends.
16 Now on the other side of this
17 continuous wall is the Court's robing
18 room, that is where counsel and the Court
19 will engage with regards to legal issues.
20 Now, because we value your time and we
21 want to as much as is humanly possible
22 economize the time that you spend here, we
23 will endeavor whenever possible to make
24 those legal issues or the time spent with
25 those legal issues as brief as we possibly

72
2 can. But again understand this, ladies and
3 gentlemen, just like you, we are mere
4 mortals. We do not all of a sudden take on
5 super human abilities when we become
6 judges and lawyers. So as much as
7 possible, we will endeavor to make those
8 legal sessions as brief as possible but
9 I'm sure each and everyone of you
10 understands when there is a need to we may
11 have to take more time with those legal
12 issues because justice mandates that we do
13 so.
14 So to the extent that I believe that
15 it will be a short recess, I will let you
16 sit in the jury box, not get up and get
17 down, and walk around etcetera. Because
18 we, I anticipate, will be very brief. So
19 I will tell you to sit tight, we'll be
20 back in a minute or two.
21 To the extent that I anticipate the
22 legal issues will take a little longer
23 period, then we will allow you to exercise
24 by getting up, filing out, going into the
25 jury room, and sitting behind closed doors

73
2 for whatever period of time we anticipate
3 it should take. If it appears that we will
4 be even longer than we think just having
5 you sit behind closed doors, then we will
6 do what we did this morning. We will have
7 you take an early break for lunch,
8 whatever period of time it may take, we
9 will have you take a longer period for
10 lunch or leave early or come in a little
11 later.
12 Again, ladies and gentlemen, I
13 apologize but I'm sure you understand why
14 we need to do that.
15 However, once counsel and the Court
16 had dealt with legal issues, any ruling
17 upon such objections or motions that I may
18 make will be based solely upon the law
19 and; therefore, you must not conclude from
20 any such ruling or from any thing that I
21 say during the course of the trial that I
22 favor any party to this lawsuit.
23 You may hear testimony during the
24 course of the trial that an attorney or an
25 investigator may have spoken to a witness

74
2 about the case before the witness
3 testifies here at trial. The law does not
4 prohibit an attorney or an investigator
5 from speaking to a witness about the case
6 before the witness testifies at trial nor
7 does it prohibit an attorney from telling
8 the witness or asking the witness the
9 questions that will be asked at the trial.
10 In other words, there's nothing
11 unlawful or underhanded by an attorney or
12 an investigator preparing a witness for
13 that witness's testimony at trial.
15 THE JURORS: Yes.
16 THE COURT: You may also hear
17 testimony that in advance of testifying a
18 witness may have reviewed certain
19 materials pertaining to the case before
20 the witness testifies at trial.
21 Again, the law does not prohibit a
22 witness from reviewing written material
23 pertaining to the case before the witness
24 testifies at the trial.
25 Again, there is nothing unlawful or

75
2 underhanded about a witness refreshing
3 their recollection with regard to
4 reviewing written materials pertaining to
5 the case.
6 Does everyone understand that?
7 THE JURORS: Yes.
8 THE COURT: Yes?
9 Upon completion of the introduction of
10 the evidence, the attorneys will again
11 speak to you in what is called a closing
12 statement or summation.
13 In summing up the attorneys will point
14 out what they believe the evidence has
15 shown, what inferences or conclusions they
16 believe you should draw from the evidence,
17 and what conclusions they believe you
18 should reach as your verdict.
19 What is said by the attorneys in
20 summation, just as what is said by them in
21 their opening statements or in the making
22 of objections or motions during the trial
23 is not evidence.
24 Summations are intended to present the
25 arguments of the respective parties based

76
2 upon their view of the evidence. And under
3 our system the defendant sums up first
4 followed by the plaintiff.
5 After summations are concluded, I will
6 instruct you on the rulings of law
7 applicable to the case and you will then
8 retire for your deliberations.
9 Your function as jurors is to decide
10 what has or has not been proven and apply
11 the rules of law that I give to you to the
12 facts as you determine the facts to be.
13 The decision which you reach will be your
14 verdict.
15 Your decision will be based upon the
16 testimony that you hear, the exhibits that
17 will be received and the exhibits that
18 will be received in evidence.
19 You, as I say, are the sole and
20 exclusive judges of the facts and nothing
21 that I say or do should be taken by you as
22 any indication that I have an opinion as
23 to the facts. As to the facts neither I
24 nor anyone else may invade your province.
25 I will preside impartially and not express

77
2 any opinion concerning the facts. Any
3 opinion of mine on the facts would in any
4 event be totally irrelevant because as I
5 say the facts are for you to decide.
6 On the other hand, and with equal
7 emphasis, I instruct you that in
8 accordance with the oath that you took as
9 jurors, you are required to accept the
10 rules of law that I give to you whether
11 you agree with them or not.
12 As an extreme example of that, if I
13 were to say to you the rule of law is that
14 Shirley Temple is the president of the
15 moon and by the way that moon's made out
16 of green cheese.
17 For those of you who are old enough
18 like me to know who Shirley Temple is may
19 look at me and say, well, Judge she's
20 awfully cute, she doesn't know what she's
21 talking about when she says Shirley Temple
22 is the president of the green cheese moon.
23 Well, let me just say you might think
24 that, but you may not go back to the jury
25 room and have a philosophical discussion

78
2 amongst yourselves with regard to the
3 merits of such a ridiculous law that says
4 Shirley Temple is the president of the
5 green cheese moon. You're just not paying
6 attention to that. She has to be
7 mistaken. That cannot be blah, blah,
8 blah, blah blah.
9 Well, once I say what the law is, you
10 are bound to apply to the law with regard
11 to the facts. You are free to decide what
12 the facts are that's your province, all
13 right.
14 When I tell you that Shirley Temple is
15 the president of the green cheese moon,
16 then that's it. Any discussions or
17 disagreements with regard to that law
18 should be taken up with your local
19 legislature and usually down to the county
20 down state Tuesdays, Thursdays, and
21 Fridays. I'm sure they would love to hear
22 from you. Their constituents want to
23 discuss any issue with regard to what the
24 law is or should be.
25 All right, everyone. We're clear on

79
2 that one? Yes?
3 THE JURORS: Yes.
4 THE COURT: Okeydokey. As the sole
5 judges of the facts, you must decide which
6 of the witnesses you believe, what portion
7 of their testimony you accept, and what
8 weight you give to it.
9 Now at times during the trial, I may
10 sustain objections to questions and you
11 may hear no answer or where an answer has
12 been made, I may instruct that it be
13 stricken or removed from the record and
14 that you disregard it and dismiss it from
15 your minds.
16 You may not draw any inference or
17 conclusion from an unanswered question,
18 nor may you consider testimony which has
19 been stricken and removed from the record
20 in reaching your decision.
21 The law requires that your decision be
22 made solely upon the evidence which is
23 before you. Such items as I exclude from
24 jury consideration will be excluded
25 because they are not legally admissible.

80
2 In other words, you may not speculate with
3 regard to items which are not in evidence.
5 In weighing the testimony of the
6 various witnesses, you may consider the
7 following: You are not required to accept
8 all of the evidence that I shall admit.
9 However, in deciding what evidence you
10 will accept, you must make your own
11 evaluation of the testimony given by each
12 of the witnesses and decide how much
13 weight you chose to give to that
14 testimony.
15 In weighing the testimony of the
16 various witnesses, you may consider all of
17 the following examples. You may consider
18 that the testimony of a particular witness
19 may not conform to the facts as they
20 occurred because he or she is
21 intentionally lying or because the witness
22 did not accurately see or hear what he or
23 she's testifying about, or because the
24 witness's recollection is faulty or
25 because the witness has not expressed

81
2 himself or herself clearly in testifying.
3 There's no magical formula by which
4 you evaluate testimony. However, you bring
5 with you to this courtroom all of the
6 experience and backgrounds of your lives
7 and in your everyday affairs you decide
8 for yourselves the reliability or
9 unreliability of things that total
10 strangers tell you.
11 So those same tests which you use in
12 your everyday dealings are the tests which
13 you will apply in your deliberations. And
14 you may consider in weighing the testimony
15 of the various witnesses all of the other
16 factors.
17 The interest or lack of interest of
18 any witness in the outcome of the case.
19 The bias or prejudice of a witness, if
20 there be any. The age, the appearance, the
21 manner in which the witness gives
22 testimony on the stand. The opportunity
23 that the witness had to observe the facts
24 about which he or she testifies. The
25 probability or improbability of the

82
2 witness's testimony when considered in the
3 light of all of the other evidence in the
4 case.
5 These are all items to be considered
6 by you in deciding how much weight, if
7 any, you will give to that particular
8 witness's testimony.
9 If it appears that there's a
10 discrepancy in the evidence, you will next
11 have to consider whether the apparent
12 discrepancy can be reconciled by fitting
13 the two stories together.
14 If, however, that is not possible, you
15 will then have to decide which of the
16 conflicting stories you will accept.
17 Now, the purpose of the rules that I
18 just outlined for you is to make sure that
19 a just result is reached when you decide
20 the case.
21 For the same purpose, you should keep
22 in mind several rules governing your own
23 conduct during any recess.
24 Now, this case involves the happening
25 of an event at a particular location. At

83
2 the plant of the third-party defendant
3 that being Ferrara Foods and Confection
4 Incorporated.
5 Now, I seriously doubt that any of you
6 can gain access to that plant, but should
7 you be inclined to do so, let me just say
8 you may not go to that particular location
9 during the time that you serve here as
10 jurors.
11 Because of the time that has elapsed
12 before the case has come to trial
13 substantial changes may have occurred at
14 that location. Also in making a visit
15 without the benefit of explanation, you
16 may get a mistaken impression.
17 Therefore, even if you happen to live
18 near that location or have a reason to go
19 to that location, please, do not go there
20 during the time that you serve as jurors.
22 Yes?
23 Please do not discuss the case either
24 amongst yourselves or with anyone else
25 during the course of the trial. In

84
2 fairness to the parties to the lawsuit,
3 you need to keep an open mind throughout
4 the trial reaching your conclusion only
5 during your final deliberations and then
6 only after all the evidence is in, you've
7 heard the attorney's summations, my
8 instructions to you on the law, and then
9 only after you've had a fair exchange of
10 views amongst yourselves as jurors.
11 I'm sorry, do all counsel agree to the
12 composition of the jury as empaneled?
14 MS. COTTES: Yes, Your Honor.
15 MS. SCOTTO: Yes, Your Honor.
16 THE COURT: Please do not -- now when I
17 say do not discuss this amongst
18 yourselves, I mean do not discuss this
19 amongst yourselves or with any body. No
20 one, no one, no one. All right. That
21 includes your best friend, your children,
22 your coworkers, Joe-shmo on the street, no
23 one, no one, no one.
24 In fairness to the parties to this
25 lawsuit, you must keep an open mind and

85
2 not discuss it with anyone, husbands,
3 wives included.
5 Please, do not permit any person who
6 is not a juror to discuss this case either
7 in your presence, or anywhere in close
8 proximity to you. If anyone does so
9 despite you're telling them not to,
10 please, report that fact to me as soon as
11 you are able.
12 You should not, however, discuss with
13 your fellow jurors either that fact or any
14 other fact that you feel necessary to
15 bring to my attention.
17 Yes?
18 THE JURORS: Yes.
19 THE COURT: Okay. All right. Although
20 it's a normal human tendency to speak with
21 people with whom one comes in contact on a
22 daily basis, do not, during the time that
23 you serve here as jurors, speak either in
24 or out of the courtroom with any of the
25 parties, their attorneys, or any of the

86
2 witnesses. By this I mean not only do not
3 speak with them about the case, but do not
4 speak with them at all even if you happen
5 to pass them in the hallways, on the
6 street, coming and going to the courtroom.
7 In no other way can the parties be assured
8 of the absolute impartiality that they are
9 entitled to expect from you as jurors.
10 All right, that means, ladies and
11 gentlemen, I am going to ask each and
12 everyone of you jurors to utilize any and
13 all elevators coming into the building
14 with the exception of the A-bank of
15 elevators which are the elevators that are
16 on the Walton side of the building.
17 So all attorneys, all parties and all
18 witnesses will exclusively use the A-bank
19 of elevators. That is the Walton side of
20 the building.
21 You, ladies and gentlemen, will be
22 free to use all other entrances. That
23 means you can come in by way of the Grand
24 Concourse side, you can come in by way of
25 161st Street, and you can come in by way

87
2 of 158th Street. 158st Street sometimes
3 has a shorter line coming into the
4 building, so that's just the little -- you
5 can utilize all of the elevators that feed
6 into that entrance except for the A-bank
7 of elevators. All right, everyone. I do
8 that to avoid the possibility that any of
9 you will get on an elevator and overhear
10 the attorneys, the parties or a witness
11 with regard to this particular case.
12 While we are on that subject, there is
13 a bathroom in the jury room. If during the
14 course of the trial any of you do not want
15 to take a number and wait for that one and
16 only bathroom in the jury room, you should
17 feel free to utilize any of the rest rooms
18 on this floor.
19 The one that is closest to us is the
20 rest rooms on either side of the D-bank of
21 elevators that is the Grand Concourse side
22 of the building.
23 The Grand Concourse corridor is the
24 corridor that directly feeds into this
25 courtroom when you open the door. So as

88
2 you come in and out of this room, you are
3 on the Grand Concourse side of the
4 building as you face the hallway leaving
5 this courtroom.
6 Is everyone clear on that? So you
7 will exclusively use those public rest
8 rooms, thereby allowing any of the
9 parties, attorneys or witnesses to use the
10 other public rest rooms on this floor.
11 This way we avoid any possibility that
12 someone utilizing one of the stalls in
13 those public bathrooms will overhear
14 anyone speaking about this case. And I say
15 that only because of experience.
16 All right, everyone.
17 THE JURORS: Yes.
18 THE COURT: Now, let me just say that
19 under the law only six jurors will
20 deliberate on the case when it is
21 submitted for your consideration.
22 And because you are such smart,
23 brilliant jurors, you've already figured
24 out that there are more than six of you.
25 Let's just review which of those six of

89
2 you are -- forgive me because I do not
3 have your cards with your first name on
4 them. Let's see if I can get that.
5 (Whereupon, there's a pause in the
6 proceedings.)
7 THE COURT: Ladies and gentlemen, I
8 apologize in advance if I incorrectly
9 pronounce your name, all right. And first
10 off is Mr. Gordial (ph) is that correct?
11 How do you pronounce that, sir, your first
12 name?
13 THE JUROR: Gordial.
14 THE COURT: Gordial, okay. You're juror
15 number one. That makes you the
16 foreperson. All right. Juror number two is
17 Mr. Jeffrey Stelle. Juror number three is
18 Miss Tanisha Wyatt. Is that correct?
19 THE JUROR: Yes.
20 THE COURT: Juror number four Maria
21 Delarosa, okay. Juror Number 5, bear with
22 me, Anthony Quaglia.
23 THE JUROR: That's right.
24 THE COURT: Is that correct? Okay.
25 Juror number six, Isida Sant --

90
2 THE JUROR: Isida.
3 THE COURT: Isida there's an extra
4 "I" in here. So Isida or maybe I just
5 need different glasses. All right Isida
6 Scott you're juror number six.
7 So you ladies and gentlemen are our
8 six sworn jurors and for the first time in
9 along time it's evenly balanced male to
10 female ratio. Three and three. This is
11 the first time it's happened in a long
12 time, all right.
13 Now we've selected three alternate
14 jurors. And they are Lia Young.
15 THE JUROR: Yes.
16 THE COURT: Miss Young you're
17 alternate number one. Gwendolyn White.
18 Miss White you're alternate number two,
19 and as indicated earlier James Caputo.
20 Mr. Caputo you are, obviously, alternate
21 number three. So this is the composition
22 of the jury.
23 Now we've selected three additional
24 jurors and you are known as alternate
25 jurors. Sometimes alternate jurors are

91
2 called to come to serve because a regular
3 juror may be prevented from continuing to
4 serve by some extreme emergency situation
5 which you had not anticipated. So it makes
6 it an extreme emergency situation which
7 you had not anticipated.
8 Now, this rarely occurs and that's
9 serious illness or death and by that I
10 mean your serious illness or death.
11 Obviously, I'll consider that of your
12 immediate family member. But you can see
13 that rarely happens except in this case we
14 already had that situation crop up which
15 is now we got Mr. Caputo.
16 We thank you nonetheless Mr. Caputo
17 for joining us, but the fact that we have
18 had that instance occur, we are hoping
19 that that will not continue to happen.
20 So notwithstanding the alternates, you
21 are required to pay the same careful
22 attention to -- careful attention to the
23 trial as our regular jurors so that if
24 your services are needed, you are fully
25 familiar with the case.

92
2 Now, I know that we're in baseball
3 season. I know it's the beginning but
4 we're in baseball season. Because my sworn
5 jurors just because we have alternate
6 jurors does not mean that any of you are
7 free to excuse yourself from the case.
8 As duly chosen jurors, it is your
9 obligation to be available throughout the
10 trial. In other words, they are not to be
11 considered by you as designated hitters.
12 All right, everyone. I know the lingo. So
13 they are only here in the event that one
14 of my regular sworn jurors is not able to
15 continue service because of some extreme
16 emergency situation which you had not
17 anticipated.
18 All right, now let me say while we're
19 on the subject, I love seeing your bright
20 and shiny faces here. Let me say that
21 first and foremost. We value our jurors
22 but not only do I want to see your bright
23 and shiny faces, I want to see the whites
24 of your eyeballs, all right.
25 I'm seeing a lot of people doing this,

93
2 and doing this, and in other words some of
3 you are starting to fade and it's too
4 early in the game for you guys to be
5 starting to fade. You're yawning and I
6 think some of you did not have the
7 requisite cup of coffee at lunch time.
8 So let me just say for those of who --
9 you know yourselves, and you know
10 yourselves better than anyone else does.
11 If you know that after having had a hearty
12 meal, be it a breakfast or a hearty lunch,
13 as only the restaurants on 161st Street
14 can provide, that you begin to fade at
15 around 10:30 or 11 o'clock in the morning
16 or at around 3 o'clock, 3:30 in the
17 afternoon, Miss Delarosa, I'm not naming
18 names. Okay, Mr. Stelle, I saw you
19 yawning, too, all right.
20 So if you need a good hearty cup of
21 coffee this is a time when a super-size
22 cup of coffee will fit the bill, all
23 right. So super-size a cup of coffee and
24 if you need to take another small cup to
25 go to have back there in the jury room by

94
2 all means. Understand that I will allow
3 you as many rest room breaks as the coffee
4 mandates. All right. So have as much
5 coffee as you want because I need to make
6 sure that you are awake.
7 While we're on the subject, as the
8 judges of the facts, you need to be able
9 to see and hear everything that goes on in
10 the courtroom. So that being said, do not
11 sit there and not hear what's going on and
12 think that you'd be very rude if you were
13 to point out that you can't hear.
14 As the judges of the facts, you are
15 going to decide the facts. How can you
16 decide a fact if you haven't heard it or
17 seen it.
18 All right, so I'm going to rely on you
19 and especially rely on Miss Delarosa who's
20 back there, juror number four, and Miss
21 White alternate number two, you are the
22 two jurors who are furthest away from the
23 Court's bench and the witness stand. If
24 you're having any difficulty hearing, all
25 right, you are to raise your hand, point

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2 to your ears, cross your eyes, do
3 something to let me know that you're not
4 having that. You're not being able to
5 take everything in. All right.
6 Likewise Mr. Tajeda and Mr. Quaglia
7 and certainly Mr. Caputo as the three
8 jurors who are closest to the witness box
9 and the Court, if you gentlemen have
10 difficulty hearing or seeing, likewise, I
11 need for you to communicate by pointing to
12 your ears, signaling to me that you can't
13 hear.
14 Same goes for all the jurors in the
15 box whether it's the Court, the witness,
16 or the attorneys. If you're having
17 difficulty please let me know. If you are
18 having difficulty seeing anything that may
19 be propped up as an exhibit, let me know.
20 All right everyone, because, otherwise, if
21 we don't know that you're having
22 difficulty, we will assume that you are
23 taking everything in.
24 Now, I would hate to have us resort to
25 read back of testimony because you were

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2 sitting there thinking you're being polite
3 and you wasn't hearing. I don't think any
4 of you want to have to hear the case all
5 over again through read back. That only
6 delays the case, all right everyone.
7 So, that being said, without any
8 further delay we will take opening
9 statements of the respective attorneys.
10 MR. DURST: May I proceed, Your Honor?
11 THE COURT: Mr. Durst, you are
12 plaintiff. Please.
13 MR. DURST: Okay. I am going to try to
14 be very brief here because we got a
15 witness out front, finally this is getting
16 started, okay.
17 You're going to start hearing the
18 evidence now. We got a witness who is a
19 doctor who's ready to testify for you.
20 Problem is we got time constraints. I
21 could talk about this case for an hour. I
22 am going to tell you very quickly what
23 it's about, all right.
24 First we have Mr. Rodriguez. Cirro
25 Rodriguez here, okay, is the plaintiff in

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2 the case I'm talking for him not for
3 myself. I wish I could do more. I'm going
4 to do everything I can, though. He is
5 working in a plant. He comes up from
6 Mexico. He's like 18 years old, 17 years
7 old, comes up from Pueblo Mexico to work.
8 Gets up here, gets a job. A couple jobs.
9 Works a few places, ends up at Ferrara
10 Foods in Brooklyn. And in Ferrara foods
11 he's working for about six months and at
12 different jobs around the place and when
13 you're not doing something, they want you
14 to help somebody else. You know, make
15 yourself useful.
16 So there's this thing called a dough
17 mixer and it's about the size of the
18 Judge's box here. Weighs tons. Big, heavy
19 machine. You mix your dough in it and
20 this has this big auger kind of blades.
21 It turns and it mixes up the dough and
22 then you take the dough out and you put it
23 over and they, they make cannoli out of
24 it.
25 All right, so he's working on other

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2 jobs most of the time. Then he would come
3 to ah -- he's, you know, when he's not
4 doing something, he is told to help out.
5 So he's helping out one of the guys who's
6 adding ingredients to the dough mixer.
7 Now that guy, you know, the dough
8 mixer at that point it's supposed to have
9 -- it's supposed to -- its like a big
10 kettle. It's about from here to here, you
11 see. And it's deep. It's -- a big bowl is
12 what it is or a kettle. You'll hear it
13 referred to as a kettle or a bowl. And
14 what it does it's like in any bowl when
15 you fill up with ingredients and you
16 mix-up the ingredients you do that when
17 the bowl is like this you know you add
18 ingredients from the top, and then it
19 mixes it all up and then it turns over
20 just like you would pour something out of
21 a bowl you pour it and then it comes out,
22 you see, and then you take the goo and you
23 get it all out and then you go doing
24 something with it. You make your canolie.
25 Well, what happened was on the day

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2 that he starts working on this thing, the
3 thing that tips, the thing that turns the
4 bowl so that the dough will come out of it
5 is broken. So it won't tip and pour the
6 dough out. What it does is it stays up.
7 We're going to show you pictures of it. I
8 wish I could show them to you now but
9 can't do it in opening statement, all
10 right.
11 So what he has to do is climb up on
12 the step ladder, stand up above the bowl
13 and reach down in it to take the dough out
14 of it you see. So, that's a very tiring,
15 tiring job. The guy is doing it before
16 him. This machine's broke for about a
17 month. He doesn't want to do it any more
18 because all the bending over, standing up
19 and pulling the stuff out, reaching down
20 in there. So they get the low guy on the
21 totem pole, Mr. Rodriguez, and they say
22 all right you want to help out, you're
23 ambitious, come on over. So he's doing
24 that job, he's doing it the guy that used
25 to -- that's working it now. That guy

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2 shows him on Friday how to add the
3 ingredients in.
4 All right, so Cirro does after a
5 couple of hours on Friday. Monday comes
6 around that guy says look let's let Cirro
7 do it. So he goes and works at another
8 place and Cirro is now adding the stuff
9 in, bending over and it mixes it up and
10 then reaching in and taking the dough out.
11 The only way you can get the dough out is
12 by the augers turning and it pushes the
13 dough up and you grab it. You see that's
14 why he -- that's how he's doing it because
15 that's the way the guy before him did it.
16 That's exactly the way the guy before him
17 did it. Why did they have to do it that
18 way, because the thing won't tip. It
19 won't tip and tip and pour the dough out.
20 Now this thing also has a safety gate
21 over it which is supposed to be on at all
22 times. Now that safety gate makes it so
23 that you can't put your hand in there.
24 Now it's supposed to be, when it's
25 made it was supposed to have been so that

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2 as soon as you open that gate it
3 automatically turns off the machine.
4 Automatically. It won't turn on if that
5 gates off.
6 When it was made it was supposed to
7 have that and we're going to have an
8 expert come in here and explain to you why
9 that was and how it was that that law
10 requiring that has existed since at least
11 the 1920s that you have to have a gate
12 over it and if it opens up, it shuts the
13 machine off.
14 What they did was because the guy Mr.
15 Rogel (ph) who was the supervisor. He
16 worked off in an office way over there.
17 He really didn't do the work. He just
18 told people what to do. He decided, well,
19 that gate is getting in the way, so he
20 removed it. He took it off entirely.
21 Now, it did not have the interlocks
22 that would automatically shut it off if he
23 removed it, it didn't have that. Wasn't
24 made with that. So he takes that gate off.
25 So these guys are working on the machine,

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2 number one, that that is the -- doesn't
3 have an interlock gate, so if you remove
4 the gate it shuts off. Doesn't have the
5 gate at all because they removed it and
6 the tilting mechanism is broken. So what
7 do you think happens with all those
8 safeties gone. Of course, the guy is
9 reaching to get the dough at the end of
10 the day. Works on it Monday, no accident.
11 Works on it Tuesday, 19 year old boy.
12 Works on it, it's turning to push the
13 dough up, he's grabbing it. Smaller
14 pieces because you're getting it all of it
15 out at the end of day you're doing it
16 exactly the way the guy showed him. These
17 blades come up, grabbed his hand, pull it
18 down in and chop off these. All he's got
19 is his pinky now and he's got half of his
20 thumb. 19 year old boy.
21 Now we're going to bring in a witness
22 who is a professor from MIT who's going to
23 explain to you why it was that that
24 machine not comply with the way it was
25 supposed to. It wasn't made the way it was

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2 supposed to be made. Even if that machine
3 was made in 1920s, it wasn't the way it
4 was supposed to be made. It was probably
5 made in the 1950s and '60s and then it was
6 sold by a company that has the name plate
7 on it Tonnaer.
8 Now, we go and we investigate. Mr.
9 Scoppa tells us that he bought the
10 machine --
11 MS. COTTES: Objection.
12 MS. SCOTTO: Objection.
13 THE COURT: Sustained. Stricken.
14 MR. DURST: It's in the deposition.
15 THE COURT: Stricken, sir, we've had
16 this legal issue. Let's move on.
17 MR. DURST: Okay, I'll read you the
18 deposition transcript about what Mr.
19 Scoppa the manager --
21 THE COURT: Sustained. Stricken.
22 Let's move on. This is an opening. It's
23 an overview.
24 MR. DURST: Okay, I'll try to be brief.
25 We then investigate and we find out

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2 that the machine was sold, the Tonnaer
3 Machine was sold to National Equipment
4 Company, that's the defendant in the case,
5 and then National Equipment Company as the
6 only distributor of that machine in the
7 United States sold it to Ferrara Foods.
8 Ferrara Foods then uses it and they
9 take the gate off, and they let the
10 tilting mechanism not function so it won't
11 pour the dough out and then the plaintiff
12 gets injured. So we sue National Equipment
13 Corporation, they then sue Ferrara Foods
14 saying that Ferrara Foods was negligent
15 also or instead of them or totally they
16 weren't negligent at all. And they also
17 say they never even sold them the machine.
18 So what we do is we go back to
19 National Equipment -- to the company
20 Tonnaer which is in Holland and we get the
21 company that succeeded them and they say
22 yeah the only company in the United States
23 that we sold the machine to was National
24 Equipment.
25 Now, we don't have records going back

105
2 that far, but we know that they are a
3 distributor, they're the only company we
4 sell the machine too.
5 Now, National Equipment says we don't
6 have any records going back that far.
7 Ferrara Foods is saying we don't have any
8 records going back that far.
9 So they don't have any records. But
10 any way they're the only people that would
11 sell the machine.
12 Now, we're going to bring in the
13 plaintiff's doctor in a few minutes. We're
14 going to bring in the vocational
15 rehabilitation guy who's going to tell
16 you about whether Mr. Rodriguez can work.
17 Whether there's a job for a man with his
18 dominant hand, his right hand, that he
19 can't -- he can't -- that he can do, you
20 know, where he can make enough money to
21 earning a living.
22 And then there's -- well, that's
23 basically the case and you -- we're going
24 to ask you to put a dollar figure. What
25 that is worth. What the loss of your hand

106
2 except for your pinky is worth.
3 That's the case. Thank you very much.
4 THE COURT: Miss Cottes.
5 MS. COTTES: Thank you, Judge. Good
6 afternoon. A tragic accident happened on
7 March 14th, 1995 and it involved a very
8 bad injury. And we talked about things
9 like that during jury selection when I
10 chose you all as jurors but something
11 that's very important here is that there
12 is insufficient evidence that my client
13 National Equipment Corporation had any
14 connection whatsoever to this particular
15 dough mixing machine.
16 So before you consider whether this
17 machine was even defective at the time,
18 those three things Mr. Durst just pointed
19 out the tilting mechanism was broken and
20 it lacked an interlock; and the gate had
21 been taken off by someone from Ferrara
22 Foods. You must first determine whether
23 National Equipment sold or distributed
24 that machine. That's the first question as
25 to my client. And if you determine that it

107
2 did not, your deliberations end but the
3 Judge will instruct you on the law.
4 Now, I submit to you that Mr. Durst
5 will put on his case and the evidence will
6 be insufficient to show that my client was
7 connected to this particular dough mixing
8 machine, whatsoever.
9 Like I said during jury selection,
10 they named the wrong party. They got the
11 wrong guy in this case.
12 Now, remember Mr. Durst has the only
13 burden of proof here. I can sit down and I
14 need not put on a case. I need not put on
15 one single witness. I can just cross
16 examine his witnesses. But I will. And
17 you're going to hear from several
18 witnesses for my client National
19 Equipment.
20 Now seated in the back of the room
21 here is Mr. Greenberg. He's one of the
22 leaders from National Equipment and as you
23 know National Equipment is first
24 defendant. Third-party defendant is Miss
25 Scotto's client Ferrara Foods who was the

108
2 employer of the plaintiff at the time.
3 Now, what witnesses will you hear from
4 on the defendant's side? You'll hear from
5 several witnesses, and the first three
6 witnesses you'll hear from are Mr.
7 Greenberg, the VP of our company. Then
8 you'll hear from an individual by the name
9 of Terrance Scochy (ph) he was the foreman
10 who was with the company for 30 plus
11 years. He knows a lot about the machinery
12 that was distributed, refurbished and sold
13 at that time and during earlier and later
14 periods. And you'll also hear from someone
15 from Ferrara Foods Edward Scoppa.
16 Now, as the Judge instructed you
17 preliminarily, sometimes you'll hear
18 deposition transcripts read or you might
19 see a video tape of a deposition and
20 you're to listen to that evidence just as
21 if a witness was on the stand.
22 Sometimes it's hard to get people into
23 the courtroom because they're either too
24 old such as Mr. Scochy and he has
25 emphysema in his late '80s or someone's

109
2 out of state. So we had to videotape
3 their deposition so I ask you to listen to
4 that and consider all the evidence.
5 Listen to this as if they were on the
6 witness stand.
7 Now, National Equipment's V.P. Mr.
8 Greenberg will tell you they have no
9 records and he'll tell you that unlike
10 what Mr. Durst just represented -- and
11 remember openings are not evidence. You
12 are to sit in this box and you are to
13 listen to all the witnesses and look at
14 all the documentary evidence before
15 determining anything.
16 Unlike what Mr. Durst said, National
17 Equipment was not a sole distributor for
18 Machine Fabriek Tonnaer from Holland so
19 wait until you hear from all the witnesses
20 and make your determination as the
21 evidence comes in.
22 Don't base any of your conclusions on
23 what was said during opening statements.
24 Now, what will Terrance Scochy tell
25 you? He will tell you that he's viewed

110
2 photographs of the machine and Mr.
3 Greenberg will tell you, as well. Because
4 once they were sued, sure we went to the
5 plant, we took photos of this machine.
6 Say listen, is this something we sold,
7 distributed to Ferrara? No, it's a
8 machine that's very different from any
9 machine Terrance Scochy was familiar with
10 when he worked at National Equipment. He
11 said sure I know what a dough mixer is,
12 but we never had something like this with
13 this many arms. It's a different machine.
14 You'll also hear from Edward Scoppa
15 through his transcript because he's out of
16 state and you'll hear that he doesn't know
17 who Ferrara got the machine from.
18 Now Edward Scoppa does not work for my
19 company. He's no longer, you know,
20 affiliated with Mr. Greenberg or the
21 company has no interest in lying and he
22 will tell you he's really not a hundred
23 percent sure. He's not sure where Ferrara
24 got the machine.
25 Secondly, in addition to finding out

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2 that there's no connection in terms of
3 invoice, bills, paperwork, letters, uhm,
4 receipts that link National Equipment in
5 any way to this particular dough mixer,
6 let's face it there's probably millions,
7 billions of dough mixers out there. We're
8 talking about the United States I, you
9 know, it's probably a number we can't
10 even, you know, estimate.
11 What you will learn after hearing that
12 there's nothing documentary to link this
13 machine to my client, you will also learn
14 that after the time the employer Ferrara,
15 plaintiff's employer, got the machine, we
16 know this like I told you we had people
17 investigate them, had them going to the
18 plant, take pictures of the machine, show
19 them to our people.
20 You will learn that Ferrara's
21 employees did the things Mr. Durst just
22 went through. Continued to work and have
23 its employees work on the machine when the
24 tilting mechanism was broken.
25 So Mr. Rodriguez was standing up on

112
2 the stool and reaching in at the time of
3 the accident. That was something Ferrara
4 Foods did, third-party defendant.
5 They also, they also had a microswitch
6 on the machine moved -- removed which
7 allowed the blades to continue to run even
8 once the safety grate was removed and the
9 grate is in place, the grate on the
10 machine was in place for the particular
11 reason that someone couldn't stick their
12 hand in, and that was taken off by Ferrara
13 employees. And Ferrara also removed the
14 microswitch which would of prevented the
15 blade from continuing to move once that
16 safety grate was off.
17 And who will tell you that, Mr. Rogel
18 who was Mr. Rodriguez's supervisor at the
19 time. We deposed him by videotape, so
20 you'll see him actually on television. He
21 lives in Maryland, that's why he's not
22 here in person. So we had to do his
23 videotaped deposition.
24 And he will tell you that he was there
25 at the time of the accident and that they

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2 had removed the gate. Ferrara had removed
3 the gate sometime prior to the accident
4 and that he had removed the microswitch
5 and that they were waiting for the Ferrara
6 repair people to come and fix the machine
7 because the tilting mechanism was off. He
8 will confirm that.
9 He will also tell you that he trained
10 Mr. Rodriguez and that Mr. Rodriguez was
11 told and, you know, it was understood that
12 he knew to always turn the machine off
13 before you start cleaning it. Don't stick
14 your hand into a machine that the blades
15 are still running. I mean, it's almost
16 like you or I sticking our hand into a
17 blender at home when it's still plugged in
18 and on and, unfortunately, Mr. Rodriguez
19 did do that and Mr. Rodriguez himself will
20 tell you that.
21 You will also learned that he stuck
22 his hand into the machine when the blades
23 was still moving and it was left on by
24 him.
25 So at the end of the case after you've

114
2 seen and heard all evidence and, again, I
3 ask you -- Mr. Durst made certain
4 representations in his opening statements.
5 It's no evidence. Listen to all the
6 evidence which is going to be photographs,
7 witness's testimony. You're going to see,
8 going to see a video. Listen to all the
9 evidence before making any determination
10 and at the end of the case I'm going to
11 ask you to find that National Equipment
12 did not sell or distribute this machine.
13 And like I said earlier, your
14 deliberations should stop there as to my
15 client. They didn't sell or distribute the
16 machine. But what you will also be able to
17 determine at the end of the case, and I
18 will ask you, is that Ferrara Foods, the
19 employer, they altered this machine, they
20 changed it.
21 While during the time they had it,
22 they took off certain key safety features.
23 They remove the gate on it so that Mr.
24 Rodriguez was able to stick his hand in.
25 They remove a microswitch that enable

115
2 the blades to continue to move even once
3 the safety grate was off.
4 And, finally, they allowed their
5 employees to continue working on a machine
6 that needed repair.
7 The tilting mechanism was broken, so,
8 therefore, the kettle couldn't -- can
9 tilted forward so Mr. Rodriguez had to
10 stand on a stool and reach into the
11 kettle.
12 And, finally, I'll ask you to conclude
13 that Mr. Rodriguez, himself,
14 unfortunately, was negligent in sticking
15 his hand into a machine that he left on
16 and he chose to clean it while it was --
17 while the blades was still moving.
18 He actually described his accident
19 that he was trying to grab little balls of
20 dough from the blades. You know, like I
21 said, its like you or I going home and
22 sticking our hand into a blender we're
23 using while it's still on.
24 I thank you very much.
25 THE COURT: Thank you, Miss Cottes.

116
2 Miss Scotto.
3 MS. SCOTTO: Thank you, Your Honor.
4 Good afternoon. My name is Francine
5 Scotto, and I represent the third-party
6 defendant Ferrara Foods. Ferrara Foods is
7 a bakery. They make pastries and the
8 plaintiff was a laborer at Ferrara Foods.
9 He was making the cannoli shells. The
10 outside part of the pastries. He worked on
11 a machine in order to do that work.
12 And you heard us talk about the dough
13 mixing machine. It's a very tall machine
14 with a very large kettle and the employees
15 did stand up on a stool to pour the
16 ingredients into this machine. And if you
17 stand up on to this stool and look down
18 into the machine, there were tremendous
19 blades, huge. And as you saw plaintiff's
20 counsel using his arms they turned. They
21 were very large blades that turn.
22 You heard talk about a grate or safety
23 grate. There was at one time a slide piece
24 of metal that was a grate that was on top
25 of the machine. It was removed by Ferrara

117
2 sometime before this accident occurred.
3 But the purpose of that grate was the
4 employees would takes the ingredients, the
5 bags of flour, the bags of sugar and
6 they'll place them on top of this grate
7 and then they'll cut the bag with a knife
8 and the ingredients in the bag would fall
9 into the kettle but the bag would remain
10 out, that was the purpose of the grate.
11 Obviously, if the grate was down, no
12 one could put their hands into the mixing
13 bowl. But it's purpose was to keep the
14 bags of the flour and the bags of the
15 sugar out of the kettle or out of the
16 mixing bowl.
17 This machine never had an interlock at
18 any point. It's not wired for an
19 interlock. There's no interlock mechanism
20 on the machine. So whether the grate was
21 down or the grate was removed, it didn't
22 have interlock. It wasn't manufactured
23 with one and the recent manufacturer is
24 not here because the manufacturer is not
25 in business. So the plaintiff's attorney

118
2 sued National Equipment claiming that
3 they sold this machine to Ferrara an that
4 the machine was defective.
5 Now, the plaintiff has the burden of
6 proof on this issue. But National
7 Equipment then sued Ferrara Foods claiming
8 that we were responsible for removing the
9 grate and for not training the plaintiff
10 properly.
11 Now Miss Cottes's client National
12 Equipment has the burden of proof on this,
13 that issue. The plaintiff was trained at
14 Ferrara Foods and he was trained to shut
15 this machine off before he removed the
16 dough and he was trained to shut the
17 machine off before he cleaned it but on
18 the date of this accident he stood up on
19 the stool, he looked down into the machine
20 and there was some remaining pieces of
21 dough left in the machine he needed to
22 clean the machine and instead of shutting
23 the machine off, there were these smalls
24 pieces of dough shaped like balls, and as
25 the blades turned, these balls started to

119
2 pop up and as they popped up, the
3 plaintiff was reaching down to grab them
4 and as he reached way down into the kettle
5 his hand got caught in the blades and
6 that's how he injured his hand.
7 There's no doubt that the plaintiff
8 has a bad injury. It is a serious injury.
9 And no one wanted it to happen. It was an
10 accident and it's very unfortunate.
11 Common sense dictates that you don't
12 stick your hand into the moving parts of a
13 machine. In fact, that is what he was
14 trained to do, he was trained to shut it
15 off and he didn't do that on that day.
16 This lawsuit isn't just about the
17 plaintiff having a serious injury. It's
18 about the plaintiff showing who's at
19 fault. That's a big aspect of this case
20 as who's at fault and that's the
21 plaintiff's burden.
22 I'm going to ask you to hold the
23 plaintiff to his burden of proof on that
24 and to hold National Equipment to their
25 burden of proof against my client Ferrara

120
2 Foods.
3 Each one of you has promised you're
4 going to listen to all the evidence and
5 that you're going to follow the law the
6 way the Judge gives it to you. But I can
7 tell you my client's position is that the
8 evidence is going to show that the
9 plaintiff did not shut this machine off
10 before he cleaned it that day; that
11 Ferrara did not purchase this machine from
12 National Equipment; and that Ferrara
13 purchased this machine used. It was not a
14 new machine when Ferrara received it.
15 The evidence is going to show that
16 Ferrara received this machine sometime in
17 the 1970s, it was a used machine and it
18 did not come from National Equipment.
19 At the conclusion of all the evidence
20 I'm going to ask you to return a verdict
21 against the only party in this courtroom
22 that's responsible for the plaintiff's
23 incident and the only party that's
24 responsible is the plaintiff. Thank you.
25 THE COURT: Mr. Durst, you have a

121
2 witness to call.
3 MR. DURST: Yes, Your Honor. First of
4 all I -- may I offer into evidence
5 Bellevue Hospital Records because he may
6 be referring to them.
7 THE COURT: All right, approach.
9 takes place at side-bar among the Court
10 and Counsel, outside the hearing of the
11 defendant and sworn jurors.)
12 THE COURT: Okay, this is a certified
13 record. The Certification is annexed to
14 the records themselves.
15 I have removed from the packet a
16 subpoena. It is not to be before the jury.
17 I will allow this to be marked and
18 received, if there's no objection. It's
19 certified so it comes in, ladies.
20 Redaction will not be made at this
21 time. Any redaction will be made at a
22 later time, therefore, the hospital record
23 will not be published to the jurors at
24 this time.
25 Now that goes with any items that are

122
2 received in evidence. If the Court and
3 counsel have not redacted, it will not be
4 published to the jury until such time
5 redactions have been made.
6 MR. DURST: May the witness use the
7 records that he has from here to describe
8 what procedures were provided.
9 THE COURT: He can utilize the records.
10 If he has an exact copy he can use his
11 copy. This is what's in evidence so long
12 as he's referring to what is part of his
13 record but is what is in evidence that's
14 fine.
15 Okay. All right, let have the witness.
16 It almost three.
17 MR. DURST: We'll go quick.
18 THE COURT: I'm saying that I will
19 anticipate that you will bear in mind that
20 there will be cross from the defendant and
21 third-party defendant to the extent that
22 you go on that length. Do not allow them
23 to do their examinations or your witness
24 will be coming back.

123
5 defendant and the sworn jury.)
6 THE COURT: The medical records
7 Bellevue Hospital deemed Plaintiff's
8 Number One certified records in evidence
9 without objection.
10 They're deemed marked for the moment,
11 all right. Let's call your witness.
12 (Whereupon, the item referred to,
13 previously People's Exhibit 1 was received
14 in evidence.)
15 MR. DURST: May I approach, Your
16 Honor.
17 THE COURT: No you stay right there.
18 What's your witness's name?
19 MR. DURST: George Unis. Doctor Unis.
20 MR. DURST: Your Honor, may I turn this
21 around and use it.
22 THE COURT: Yes.
23 MR. Durst.
24 THE COURT: Mr. Durst, I'm going to
25 ask you to move the podium behind counsel

124
2 table. It doesn't have to go that far. I
3 don't want it to impede the ingress and
4 egress of the jurors as they go in and out
5 of the box. Let's proceed.
6 THE COURT OFFICE: Do you swear or
7 affirm the testimony you are about to give
8 to that Court is the truth, and nothing
9 but the truth?
10 THE WITNESS: I do.
11 THE COURT OFFICER: Be seated. State
12 your full name, first name, last name,
13 spelling.
14 THE WITNESS: George Unis. UNIS. 115,
15 East 61st Street, New York, New York.
16 THE COURT: All right. Good
17 afternoon, doctor.
18 THE WITNESS: Good afternoon.
19 THE COURT: All right, doctor, I'm
20 going to ask you to please speak nice and
21 loudly, clearly but more importantly
22 slowly.
23 Are you a New Yorker?
24 THE WITNESS: I am.
25 THE COURT: All right. Slowly so that

125
1 DR. UNIS - PLAINTIFF - DIRECT
2 the jurors can hear everything, everything
3 that you have to say. All right, sir?
4 THE WITNESS: All right.
5 THE COURT: You may inquire.
6 MR. DURST: Thank you, Your Honor.
7 DIRECT EXAMINATION
8 BY MR. DURST:
9 Q. Would you describe your educational
10 background for the jury?
11 A. I went to New York University, in the
12 Bronx College.
13 I went to the New Jersey College of
14 Medicine Medical School, graduated in '65.
15 In '65, I did a residency in surgery at
16 St. Lukes Hospital.
17 In '66, I did a residency internship in
18 surgery -- I'm sorry in '65.
19 In '66 I did a year of surgical
20 residency, same hospital.
21 From '67 to '70, same hospital orthopedic
22 residency. Finished that 1972.
23 From '70 to '72, I went into the United
24 States army, got out in '72 entered private
25 practice at the then St. Lukes Hospital.

126
2 In 1973 I took my board examination.
3 Became -- I passed the examination, became Board
4 Certified in orthopedic surgery. I do a lot of
5 things in orthopedics and have done a lot of
6 things.
7 At present I'm the chairman of the
8 Orthopedics Department of St. Lukes Roosevelt. I'm
9 program director. We train orthopedic residents,
10 15 of them at a time.
11 I am engaged in the private practice of
12 orthopedic surgery. I operate, see patients and
13 see all types of orthopedic patients.
14 For those of you who don't know,
15 orthopedics is that branch of medicine that deals
16 with bones, joints, muscles, back injuries, foot
17 injuries, hand injuries things like that. Sports
18 injuries.
19 THE COURT: Doctor, you seem to
20 trail off at the end and you lower your
21 voice as your concluding your sentence.
22 Please, I need for you to keep your
23 voice raised throughout your entire
24 testimony. I don't want to see the Court
25 Reporter squirming to hear you or

127
2 squinting because she can't hear you, all
3 right. So nice and loud throughout.
4 THE WITNESS: All right.
5 Q. Doctor, do you -- when did you first see
6 Mr. Rodriguez?
7 A. I first saw Mr. Rodriguez in -- on
8 December 7th, 1995.
9 Q. Now, doctor, when somebody -- you see
10 somebody at the hospital or at your office, do you
11 keep office records of those visits?
12 A. Yes, I do.
13 Q. Okay, and are those records which you
14 keep in the regular course of your business?
15 A. Yes, they are.
16 Q. And it's the regular course of business
17 to keep such records, right?
18 A. That's correct.
19 Q. Okay.
20 MR. DURST: And, Your Honor, may I
21 approach the witness and show him these
22 documents?
23 THE COURT: Give them to the Court
24 Officer.
25 Actually let's have that handed to

128
2 defense counsel first.
3 I'm sorry, doctor.
4 THE COURT: All right counsel do you
5 both have a copy of that document?
6 Do you have a copy?
7 MS. SCOTTO: Not everything that's in
8 there.
9 Your Honor may we approach?
10 THE COURT: Let's go into the robing
11 room.
12 Ladies and gentlemen don't move. We'll
13 be right back.
17 the sworn jury.)
18 MS. SCOTTO: Judge, those are the
19 actual notes and behind them he has a
20 report plus another report we've never
21 seen, plus the workers compensation.
22 THE COURT: He's the treating, correct?
23 MS. COTTES: Um hum.
24 THE COURT: All right, you got
25 authorization for the treating records of

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2 the treating?
3 MS. SCOTTO: Yes and what I received
4 was his -- just his typed notes which are
5 there but then there's two reports plus
6 his workers comp statement that is -- were
7 not provided. They are not really part of
8 his records.
9 THE COURT: I have no idea what they
10 -- what part of his records or what are
11 not part of his record. That has not been
12 revealed.
13 MS. COTTES: Are you seeking to--
14 MR. DURST: You know what I would do,
15 Your Honor, is I would redact the -- agree
16 to suggest we redact the workers
17 compensation record.
18 THE COURT: What are you looking to do
19 with this?
20 MR. DURST: I want to offer it in as a
21 business record, Your Honor. But the
22 portion that refers to worker comp I would
23 agree should not go in.
24 MS. COTTES: Also anything about his
25 ability to work?
130
2 MR. DURST: Why?
3 MS. SCOTTO: Because --
4 MS. COTTES: Or earn, I should say.
5 Earn certain --
6 MR. DURST: Just his office records.
7 Everything that's in his office records is
8 what I'm offering.
9 MS. SCOTTO: But not his report
10 that --
11 THE COURT: First, you haven't
12 established that you saw him in his office
13 through him.
14 MS. SCOTTO: And the reports that he
15 wrote that's --
16 MR. DURST: No, not the report that he
17 wrote. I'm not offering that.
18 MS. SCOTTO: There's two reports.
19 MR. DURST: Yeah -- no that's prepared
20 for.
21 THE COURT: What are you looking to
22 offer here?
23 MR. DURST: Your Honor, I think it will
24 just be these pages here.
25 THE COURT: Which pages are those?

131
2 MR. DURST: Okay.
3 THE COURT: Why don't you pull apart
4 what you're looking to offer up into
5 evidence.
6 MR. DURST: Then he also has billing
7 records in here.
8 I think he brought in his billing
9 records. We'll do that separately.
10 THE COURT: You have those records.
11 MS. SCOTTO: Those two we have.
12 Judge, may we just ask about a ruling
13 on him working?
14 This witness isn't qualified to
15 testify as to whether or not he can ever
16 work again.
17 THE COURT: That's not what I
18 anticipate that this doctor is here to
19 discuss, right?
20 MR. DURST: His report has he is
21 unable to work.
22 MR. DURST: That's what doctors do.
23 MS. SCOTTO: He can't testify --
24 MR. DURST: He has as opinions as to
25 whether anybody can work he puts in his

132
2 office records and he puts it in his
3 records.
4 MS. SCOTTO: That's not admissible.
5 MR. DURST: Off the record.
6 THE COURT: The Court reporter isn't
7 taking down what you're saying because
8 you're all speaking over each other.
9 MS. SCOTTO: May I start, Your Honor?
10 It was my application to preclude the
11 doctor from testifying about the
12 plaintiff's ability to work. He's not an
13 employability expert. He can't say that
14 the plaintiff can't work again. He may be
15 able to testify as to what activities the
16 plaintiff can and cannot do but he can't
17 say that he can't work.
18 THE COURT: Miss Cottes anything from
19 you?
20 MS. COTTES: I would concur in that,
21 Judge. I mean it's one thing if he says
22 the plaintiff is permanently or
23 nonpermanently disabled but as to, you
24 know, his ability to work or not work or
25 earn certain figures, you know, I would

133
2 concur in that he should not be able to
3 answer that question.
4 MR. DURST: He would just testify in
5 accordance with his report. In his report
6 he testifies the guy is unable to work.
7 And, of course, that's something the
8 doctors do all the time to evaluate
9 whether somebody's able to work.
10 MS. COTTES: It's also cumulative?
11 MR. DURST: It's not cumulative at all.
12 It's pretty important.
13 MS. SCOTTO: Just because it's in his
14 report doesn't mean he gets to testify to
15 it.
16 THE COURT: Let's see where this leads
17 in terms of how he treated this plaintiff.
18 Let's lay more of a foundation and then
19 let's hear what the doctor has to say
20 based upon his treatment, all right.
22 MS. COTTES: Thank you.
23 THE COURT: By the way, it's now almost
24 ten to four.
25 MR. DURST: I'm going as fast as I

134
2 humanly can.
3 THE COURT: Again, I want you all to
4 understand if this witness isn't concluded
5 by a quart to five which is when we cease
6 for the afternoon, the witness will be
7 coming back.
8 MR. DURST: I'm doing everything I can.
9 THE COURT: Is that clear?
10 MR. DURST: I'm doing whatever I can.
14 defendant and the sworn jury.)
15 THE COURT: Proceed. All right, let's
16 continue.
17 MR. DURST: All right, Your Honor, I
18 offer Plaintiff's Exhibit Two, in
19 evidence.
20 THE COURT: Let's have a little more
21 background information before we go there,
22 all right.
24 BY MR. DURST:
25 Q. Are those records --

135
2 THE COURT: Mr. -- with regards to
3 what we discussed in the robing room all
4 right.
5 Q. Are those records which you --
7 MR. DURST: Yes.
8 THE COURT: The doctor saw your client
9 almost 12/7/95. Let's take it from there.
10 MR. DURST: I'm sorry, Your Honor.
11 Q. Did you see Mr. Rodriguez for the first
12 time in your office?
13 A. That's correct. Yes, I did.
14 Q. And are those your office records?
15 A fair and accurate copy of the office
16 records?
17 A. May I. (Pause. )
18 These are my office records.
19 MR. DURST: Your Honor, I offer those
20 Plaintiff's Exhibit Two?
21 THE COURT: All right, there's still a
22 foundation that needs to be made.
23 Q. Are those the entire office records?
24 A. They are not.
25 Q. Those are your office notes?

136
2 A. These are my office notes.
3 Q. And you dictated those yourself?
4 A. Yes, I did.
5 Q. Okay. Uhm, that's a fair and accurate copy
6 of them?
7 A. That's a fair and accurate copy. Yes, it
8 is.
9 MR. DURST: Is it something, Your
10 Honor?
11 THE COURT: That's for you to tell me,
12 sir. All right.
13 Foundational relevance.
14 Q. Was it necessary for you to -- for your
15 treatment to keep these office records?
16 A. Yes, it's part of the course of routine
17 medical care to have office records.
18 MR. DURST: Missing something still,
19 Your Honor.
20 THE COURT: Again Mr. Durst that's for
21 you to tell me.
22 MR. DURST: Well, I offer them in
23 evidence.
25 MS. SCOTTO: Objection, Your Honor.

137
2 THE COURT: All right were missing an
3 element, so let's get that element out.
4 MR. DURST: Okay. Let's go over it,
5 okay, while I look.
6 Q. Now, doctor, would you tell us did you
7 review the Bellevue records?
8 A. Yes, I did.
9 Q. Okay and would you summarize those
10 records for us based on your -- what you needed to
11 know out of those records and tell the jury what
12 his treatment was at Bellevue based on those
13 records?
14 A. Mr. Rodriguez was brought to Bellevue
15 Hospital after sustaining an injury to his right
16 hand.
17 He was first seen in the emergency room
18 and found to have partial amputation of his right
19 thumb and almost complete amputation of his
20 second, third and forth fingers.
21 He received emergency care in the
22 emergency room which consisted of pain medication
23 intravenous medication, intravenous fluids. He
24 was brought to the operating room some time later
25 where he had a surgical procedure on his right

138
2 hand, his dominant hand.
3 He had and amputation of the distal
4 phalanx of the right thumb.
5 Distal phalanx is this portion of the
6 right thumb that extends from the end joint out to
7 the finger nail.
8 In reviewing the records this was done
9 because that portion of the hand was badly
10 mangled, was not viewable and the surgeon elected
11 to amputate at the what we call the I.P. joint
12 interphalangeal joint.
13 The second, third and forth fingers were
14 partially amputated. They weren't completely cut
15 off by this incident of March 14th, 1995, but were
16 left connected by bridges of skin.
17 The nerves were cut. The vessel were
18 cut. The tendons were cut. Everything was cut
19 except some skin.
20 What the surgeons did for the second
21 third and fourth fingers was complete the
22 amputation.
23 In addition to that they created skin
24 flaps to close the amputation site. Before you do
25 that you have to take off the end of the

139
2 cartilage, the articular cartilage, the shiny part
3 of the joint that at the end of the chicken bone
4 you take that off because if you close over that
5 it won't heal.
6 So at the thumb, second, third and fourth
7 fingers they took the ends of the bones off, and
8 they closed the skin, put him into a functional
9 dressing. Addressing position of function is
10 positions where you simulate the holding of a
11 football, that's the best way to describe it. And
12 he left the operating room in this dressing.
13 Subsequently during his Bellevue stay he
14 was sent for physical therapy for splinting, and
15 for desensitizing of the hand.
16 When you cut across --
17 THE COURT: Of the hand? What of the
18 hand?
19 A. Desensitization of the hand.
20 After these types of injuries--
21 MS. COTTES: Judge I'm going to
22 object at this point.
23 THE COURT: Overruled.
24 A. After these types of injuries because the
25 nerves are cut, the hand is hypersensitive so that

140
2 when you touch the skin it hurts a lot. And you
3 have to what we call desensitize. The therapist
4 has various modalities of doing that. The most
5 common being just tapping on the hand using
6 electrical stimulations things likes that to try
7 to take away that sensitivity.
8 In addition because he only had a portion
9 of the thumb left, and because he lost the second,
10 third and fourth fingers, basically, and only had
11 a little finger, it was important to keep the
12 mobilization of the thumb and the little finger
13 going to keep it from getting stiff because he
14 really had not much of a hand left and what he had
15 left had to be kept functioning as well as it
16 could and so he was sent to physical therapy for
17 that for a functional splint and for the
18 consideration of a prosthesis.
19 A cosmetic prosthesis not protheses that
20 opens and closes just something that looks like a
21 hand. And ultimately he was discharge from
22 Bellevue and ended up with me some months later.
23 Nine months later or thereabouts.
24 Q. Okay. Now, doctor, by the way, did you
25 keep those records at or near the time that -- did

141
2 you make those records at or near the time that
3 you actually recorded the events?
4 A. Yes, I did.
5 MR. DURST: Your Honor, may I offer
6 them in evidence at this point?
7 THE COURT: Which records are you
8 talking about?
9 Recorded what events?
10 MR. DURST: The office records.
11 THE COURT: Recorded what events?
12 MR. DURST: The notes of his office
13 visit. The record was made within a
14 reasonable time after the office visit.
15 Q. Is that correct, Your Honor -- I mean is
16 that correct?
17 A. Yes.
18 THE COURT: Objection -- now no
19 objection's made.
20 MS. SCOTTO: Your Honor, just subject
21 to redaction.
22 THE COURT: These will always be
23 subject to redaction.
24 All right, ladies and gentlemen. Let
25 me just explain something to you with

142
2 regard to receipt of items in evidence.
3 Ordinarily at a practical period I
4 will have the evidence published to you
5 that means that you will have an
6 opportunity to look at the evidence before
7 you retire for your deliberations.
8 However, with regard to certain items
9 that are received in evidence, the Court
10 and counsel will in regards to certain
11 items need to make redactions. That means
12 we will need to white out or exclude from
13 your ability to see certain items that you
14 are not in a position as jurors to see.
15 In other words, there are legal issues
16 which you may not review and those legal
17 issues the Court and counsel will prevent
18 you from seeing by making redactions.
19 So until such time as those redaction
20 are made i.e. with the medical records or
21 with the doctor's office records, you will
22 not have an opportunity to see them in the
23 courtroom. All right. But you will see
24 them at an appropriate time.
25 All right. So that's Plaintiff's

143
2 Number Two, in evidence. Now subject to
3 redaction.
5 previously Plaintiff's Exhibit Two was
6 received in evidence.)
8 Q. Doctor, can you describe for the jury what
9 your treatment of Mr. Rodriguez consisted of?
10 A. By the time I'd seen Mr. Rodriguez it was
11 nine months approximately after this amputation
12 and this surgery, whatever. And he came to me for
13 an evaluation to see what we can offer him and we
14 talked about several things.
15 One was prosthesis that I told you
16 about before which was purely cosmetic. It would
17 just be -- it would look like a hand but it won't
18 work like a hand.
19 THE COURT: Doctor, you need to
20 stop. You trail off at the end.
21 So the prosthesis that did what, sir?
22 A. That looked like a hand but didn't work
23 like a hand. And the possibility of an operation
24 or operations to restore some a semblance of
25 function. And we discussed this at various stages

144
2 and I saw him intermittently in '95, and '96 for
3 just these considerations.
4 And he did eventually get a prosthesis.
5 He couldn't tolerate it very well. It was
6 functionless, A, and B, it was pain -- it was
7 painful on his hands. He didn't really use it but
8 he did attain it.
9 We talked to him about surgical
10 procedures. When somebody has amputation to the
11 extent of Mr. Rodriguez, you can't and certainly
12 in 1996 we couldn't implant because we weren't
13 doing that kind of thing then.
14 But what can we do to restore some
15 function? Well, you can do a series of operations
16 to try to create for him a semblance of a hand
17 that looks like a lobster claw and what you would
18 have to do is take a portion of the hand, deepen
19 the cleft and create a post so that at least he
20 could use it like a pincher.
21 Now that would take four, five,
22 operations. An awful lot of rehab. Probably two
23 years of his time, probably $200, $250,000 and it
24 would leave him with a lobster claw and really not
25 an awful lot more.

145
2 And any way this was not done and Mr.
3 Rodriguez attempted in the time I knew him -- and
4 Mr. Rodriguez is an absolutely wonderful human
5 being who worked very hard.
6 MS. SCOTTO: Note my --
7 MS. COTTES: Note my objection.
8 THE COURT: Sustained, and that's
9 stricken.
10 A. Mr. Rodriguez attempted to become left
11 handed and attempted to use his left hand as his
12 right hand.
13 Now he did regain some left handed
14 function. His left handed function improved
15 certainly over the course of time but he never was
16 able to do anything more than rudimentary things
17 with his left hand. He never could do the five
18 things that he could do with his right hand.
19 As a result of all this he has not worked
20 gainfully, to my knowledge, since this thing
21 happened.
22 Q. Doctor, do you have an opinion with a
23 reasonable degree of medical certainty whether the
24 injuries you described are permanent?
25 A. They are permanent.

146
2 Q. And do you have an opinion whether
3 they're approximately caused by the injury in the
4 dough mixer March 14th, 1995?
5 A. The injuries, the condition is caused by
6 the injuries by the incident of March 14th, 1995.
7 Q. And do you have an opinion as to the
8 degree of diminished right-hand function caused by
9 those injuries?
10 A. Mr. Rodriguez has virtually a useless
11 right hand. And he has an excess of 85 percent
12 loss of the use of his right hand.
13 Q. Do you have an opinion whether he is able
14 to work with a reasonable degree of medical
15 certainty?
18 THE COURT: Sustained.
19 Q. Okay.
20 MR. DURST: No further questions, Your
21 Honor.
22 THE COURT: Cross.
24 CROSS EXAMINATION
25 BY MS. COTTES:
147
1 DR. UNIS - PLAINTIFF - CROSS/MS. COTTES
2 Q. Good afternoon.
3 A. Good afternoon.
4 Q. You're paid for being here today?
5 A. I'm -- I'm paid for my time. Yes, I am.
6 Q. And how much are you being paid here?
7 A. Six thousand dollar.
8 Q. Now have you testified before?
9 A. Yes, I have.
10 Q. And during the course of a year how many
11 times would you say you testified in the last five
12 years?
13 A. Probably five or six times a year.
14 Q. And is that normally for people -- for
15 people who are bringing the suits?
16 The plaintiffs?
17 A. It's probably 60/40 in favor of
18 defendants.
19 THE COURT: I'm sorry 60/40.
20 A. 60/40 in favor of defendants probably.
21 Q. Now, you have no personal knowledge of
22 the accident that happened on March 14th, 1995,
23 right?
24 A. The knowledge I have is derived from Mr.
25 Rodriguez and from the Bellevue records.

148
2 Q. Okay. But you weren't there at the time?
3 A. I was not there.
4 Q. Okay. You have no personal knowledge of
5 the work history of Mr. Rodriguez, do you?
6 A. No, ma'am.
7 Q. Now, do you have any personal knowledge
8 about where Ferrara Foods got the dough mixer that
9 was involved in this accident?
10 MR. DURST: Objection.
11 A. No, ma'am.
12 Q. And you have no personal knowledge how
13 long plaintiff's employer had that dough mixer, do
14 you if?
17 Q. Now, you saw Mr. Rodriguez regularly for
18 one year, is that right?
19 Approximately one year?
20 A. Approximately.
21 Q. And then you didn't see him for seven
22 years after that?
24 Q. Now during that seven years did you keep
25 in touch with Mr. Rodriguez?

149
2 A. I don't recall. I personally was not in
3 touch with him.
4 I don't know if he was in touch with my
5 office but I personally was not in touch with him.
6 Q. Who referred Mr. Rodriguez to you at
7 first?
8 A. I really don't know.
9 Q. Now during the seven years that you
10 didn't see Mr. Rodriguez, do you know if he was
11 working at all?
12 A. I don't know.
13 Q. And other than the injuries to his right
14 hand, did you determine when you saw him whether
15 he sustained any other injuries on March 14th,
16 1995?
17 A. I was only aware of the right-hand
18 injury.
19 Q. Now, do you know if during the seven
20 years you didn't see him whether he went back to
21 Mexico for a while or whether he was in the United
22 States the entire time?
23 A. I can't answer that question.
24 Q. Now, you said the prosthetic that during
25 the first visit you talked to him about it was

150
2 cosmetic only?
3 A. Yes.
4 Q. And did he ever end up getting a
5 prosthetic at that time?
6 A. He eventually got it. I don't recall
7 when he got it but he eventually got it prosthesis
8 prosthetic device.
9 Q. Was it during the year that you first saw
10 him?
11 A. It was not in the first year.
12 Q. Do you know when it was?
13 A. Just bear with me I'll see if I have
14 something close to when he -- I really don't know
15 when he got it. I know that when I saw him I guess
16 on August -- in August of 2003, I knew he had
17 gotten it but I don't know when he got it.
18 Q. Okay. Did you prescribe a prosthetic?
19 A. I prescribed the prosthetic yes.
20 Q. Do you know if he got that at the time or
21 shortly after you prescribed one?
22 A. I have no idea.
23 Q. Sometime in the seven years between when
24 you saw him for the year after the accident and
25 2003 he got a prosthetic?

151
2 A. I would assume.
3 Q. And do you know if another doctor
4 prescribed that?
5 A. I would have -- I have no way of knowing
6 that.
7 Q. Now, would you agree that Mr. Rodriguez
8 would benefit by reconstructive surgery on the
9 hand?
10 A. I would agree that reconstructive surgery
11 might give him a little bit more function, as I
12 said.
13 Q. Now you mentioned earlier that implants
14 weren't available back in 1995, '96 when you first
15 examined him, right?
16 A. I didn't say implants. I said in 1995,
17 1996, we were not reimplanting fingers the way we
18 do now.
19 Q. Okay.
20 A. We, now because of micro -- because of
21 the advent of microsurgery, are able, if the
22 tissue is not too badly mangled, to attempt to sew
23 the nerves in the small vessel back under a micro
24 scope.
25 Now in 1995 that was really in it's

152
2 infancy.
3 THE COURT: I'm sorry.
4 A. In 1995 this was really in it's infancy.
5 Q. And did something like that reconnecting
6 the digits does that have to be done immediately
7 after the accident or could it be done after
8 sometime?
9 A. It's got to be done immediately after.
10 Q. Okay, and would you agree that
11 rehabilitation would help Mr. Rodriguez?
12 A. At this stage of the game?
13 Q. Well, when, when, if at all, would
14 rehabilitation have helped him?
15 A. As I said in my statement as I talked
16 before immediately post-operative after he'd had
17 the amputation completed and the wounds closed, it
18 was important for him to get rehabilitation to
19 keep the function of what was left of his thumb
20 and of his little finger to keep his hand from
21 stiffening up.
22 At this time and even after the first six
23 months, eight months, nine months rehabilitation
24 wouldn't of done a thing because he's got useless
25 hand.
153
2 Q. Now, when you say reconstructive surgery
3 would help him, could you tell us what types of
4 things that would include?
5 A. It would include among other things in my
6 notes it's a ray (ph/sic) resection. Where you
7 take a ray out, you end up with an instead of a
8 five finger hand a four finger hand and you deepen
9 the clef and do various fusion and rotational
10 osteotomies breaking the bone and turning it to
11 create a lobster claw type thing and the idea is
12 the most important part of hand function is pinch
13 opposition. He has -- he has half a thumb and no
14 post to oppose. So this would be an attempt to
15 give him for want of something better a lobster
16 claw, that's the best way to describe it.
17 Q. And have you recommended that to Mr.
18 Rodriguez?
19 A. He and I have discussed it.
20 Q. And has he elected not to do it or has
21 something else prevented him from not doing it?
22 A. Well, he just -- it's just not something
23 that he's done.
24 I can't answer why.
25 Q. Okay. How about occupational therapy?

154
2 A. He's had vocational rehabilitation to my
3 knowledge.
4 Occupational therapy as oppose to
5 physical therapy. Again that's not going to grow
6 him three and a half fingers. And that's really
7 what he needs.
8 Q. Have you recommended occupational
9 therapy?
10 A. I have not. I've recommended physical
11 therapy.
12 Q. Do you know if he's had additional
13 physical therapy?
14 A. I don't know the answer to that.
15 Q. And do you know if he's had occupational
16 therapy?
17 A. Again I don't know the answer to that
18 either.
19 MS. COTTES: Thank you very much.
20 THE COURT: Thank you.
21 THE COURT: Miss Scotto.
22 MS. SCOTTO: Your Honor, I have no
23 questions.
25 Honor.
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1 PROCEEDINGS
2 THE COURT: Doctor, you may step down.
3 THE WITNESS: Thank you.
4 THE COURT: Okay counsel at the bench.
8 defendant and sworn jurors.)
9 THE COURT: All right ladies and
10 gentlemen, we have been discussing
11 scheduling with the attorneys. Rather than
12 have Mr. Rodriguez begin his testimony,
13 rather than have him begin before he even
14 begins, calling an interpreter to come
15 upstairs, how long that's going to take we
16 don't know, and the to begin and then stop
17 15, 20 minutes we're going to have his
18 testimony in total from beginning to end
19 without stopping, all right ladies and
20 gentlemen.
21 But let me just say for your own
22 scheduling needs I anticipate that this
23 case should take hopefully two weeks all
24 right given the number of witnesses that
25 we have, number of attorneys I anticipate

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1 PROCEEDINGS
2 it taking approximately two weeks. I'm
3 hoping it won't be more than two weeks if
4 possible less than two weeks that's just a
5 ballpark figure, all right.
6 So as we sit here right now we don't
7 know how long it will take but we're
8 hoping it won't be more than two weeks and
9 I will definitely keep you informed as our
10 schedule change, all right ladies and
11 gentlemen.
12 So that being said now you heard some
13 testimony today. I'm going to remind you
14 each and I ever time that we have a recess
15 and you will remember this and you'll be
16 telling me what the admonitions are
17 because you will have memorized them
18 before long.
19 Please, do not discuss the case
20 amongst yourselves or with anyone else.
21 Please, do not allow anyone to either
22 discuss it with you or in your presence.
23 Anyone attempting to do so you'll bring it
24 to my immediate attention through my court
25 staff, and by that I mean my court officer

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1 PROCEEDINGS
2 and my court clerk.
3 Please, don't speak with any of the
4 parties, attorneys or witnesses at all.
5 And you will remember you will use
6 every elevator coming up and every
7 entrance except for which bank of
8 elevators?
9 THE JURORS: A.
10 THE COURT: Who says jurors don't pay
11 attention. You guys are all right.
12 Please, do not go to the area in
13 question during the time that you serve
14 here as jurors, all right ladies and
15 gentlemen.
16 I don't believe I neglected to inform
17 you about any other admonitions. And oh,
18 yes, don't forget tomorrow morning what
19 beverage of choice will you be selecting?
20 THE JURORS: Coffee.
21 THE COURT: Or limon zinger which ever
22 one of these teas wakes you right up those
23 are the teas and coffees.
24 All right, ladies and gentlemen, make
25 sure you relax, no one stay up late

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1 PROCEEDINGS
2 watching Letterman. I need you to be
3 bright-eyed, bushy-tailed. I will have
4 you here tomorrow morning ten o'clock in
5 the morning ready to proceed, all right
6 everyone. Have a good evening.
7 Don't kiss anyone with stomach virus
8 or flu symptoms virus is going around I
9 want each and everyone of you healthy.
10 Tomorrow morning bright and early ten
11 o'clock.
12 Have a good night each and everyone of
13 you.
14 THE JURORS: God bless.
15 THE COURT: Thank you.
16 THE COURT OFFICER: Jury's excused.
18 courtroom.)
19 THE COURT: We'll have to take this up
20 again tomorrow morning, all right.
21 Anything other than what we did not finish
22 discussing upstairs, all right.
23 You are, Mr. Durst, you can say what
24 you were going to say since yesterday
25 because I know you will split if you

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1 PROCEEDINGS
2 don't.
3 MR. DURST: Your Honor, thank you.
4 I just have my trial memorandum and if
5 the things that I would like to have on
6 the record as maybe a Court's Exhibit for
7 purposes of the economist and for purposes
8 of Vanessa Mangel's testimony. And I don't
9 expect to reargue that with Your Honor,
10 but I'd like to see maybe if you wanted to
11 peruse some material it will be great and
12 maybe I didn't give you enough information
13 from the Appellate record which I should
14 have and maybe I was remiss in doing that
15 and I would maybe like an opportunity to
16 do that if you would give me permission to
17 but at least on the economist issue I
18 would like, well, to give you the trial
19 memorandum at least.
21 MS. COTTES: Your Honor, I just want
22 to make a record that we did, defendant,
23 did apply to bifurcate the trial. I
24 realize you've denied that application.
25 And the only two remaining issues is to

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1 PROCEEDINGS
2 rule on objections and the Rogam (ph/sic)
3 transcript and I believe plaintiff is
4 seeking to reintroduce the videotape of a
5 discovery and inspection which we do have
6 an objection to.
7 THE COURT: Videotape of, I'm sorry?
8 MS. COTTES: Of discovery inspection.
9 Inspection of the machine and at least in
10 part I have an objection to that video.
11 MS. SCOTTO: Your Honor if I -- I can
12 also be heard. I also had application to
13 bifurcate the trial which I understand was
14 denied. I just want to put it on the
15 record but I understand that my
16 application to inquire of the plaintiff
17 about his illegal status is still pending,
18 as well.
19 THE COURT: All right, that
20 application let me just -- let me just
21 take them in order, all right.
22 Mr. Durst, with regard to the expert
23 economist, that application is not before
24 this Court.
25 As I explained to you before that is

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1 PROCEEDINGS
2 law of the case. You had an opportunity
3 when Justice Thompson ruled against you
4 and precluded your economist from offering
5 testimony to either appeal his s decision
6 or make a motion to renew and reargue. You
7 chose not to do that. So that is not
8 before the Court and I will not consider
9 any thing that you wish to put before me
10 with regard to the economist.
11 My fellow -- my brother Jurist with
12 equal jurisdiction has already ruled on
13 it. I am not going to touch it. I'm not
14 even going to consider anything that would
15 become assemblage of my consideration as a
16 court exhibit. So if that's part and
17 parcel of that exhibit which you wish to
18 hand up to the Court you may remove it
19 from that parcel.
20 MR. DURST: Okay.
21 THE COURT: All right, sir.
22 MR. DURST: Did, well, I appreciate
23 what you're saying.
24 Is it though at all possible to at
25 least get it into the record that you --

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1 PROCEEDINGS
2 what I wanted to give you?
3 THE COURT: That as I explained that
4 is not an argument that this Court will
5 entertain whether you want to characterize
6 it as a court exhibit.
7 However you chose to characterize it.
8 It is not for this Court to look at those
9 items. The Court will not be passing upon
10 that issue. That is not part of my case
11 for trial purposes. That has already been
12 ruled on by a colleague of co-equal
13 jurisdiction. So unless you have appealed
14 that issue or made a motion to renew and
15 reargue, that is not something this Court
16 will entertain in any form.
17 MR. DURST: Okay, Your Honor.
18 THE COURT: What else does part of
19 that record that you wish to ask that I
20 annex as a court exhibit?
21 And just be advised any court exhibits
22 will be taken by the Court at the
23 conclusion of the trial, not at this
24 juncture.
25 MR. DURST: The only other thing would

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1 PROCEEDINGS
2 be with regard to Miss Manguel's
3 testimony. I think I have pretty much here
4 in my -- the trial memo that I did in
5 opposition to many of the motions in
6 limine but one of the main things that I
7 brought up in that in this trial memo was
8 the -- I did bring up the issue of Miss
9 Manguel's testimony.
10 THE COURT: All right, so the extent
11 that you did not give me that particular
12 portion of the voluminous documents that
13 you have before you, I will take up that
14 aspect of your memo motion in limine. But
15 I do believe that we discussed this at
16 length yesterday and again today. So if
17 you want me to consider that motion in
18 limine those documents to have as part of
19 my documents, I will take them as I did
20 the defendant's motions in limine. Other
21 than that, I'm not considering anything
22 else.
23 MR. DURST: Okay, Your Honor, you know
24 what just dawned on me would be a better
25 idea, is it possible just to provide you

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1 PROCEEDINGS
2 with the Appellate record on appeal?
3 THE COURT: Again let's not cloud the
4 issues, all right. Remember what I said
5 upstairs in chambers, all right.
6 Now with regard to plaintiff's video
7 of discovery and inspection that relates
8 to the video of Miss Manguel.
9 MS. COTTES: It's a video tape of an
10 inspection of the machine. Miss Manguel's
11 there as well at several other people. I
12 would object to it to the extent there's
13 voices on it which arguably could be
14 dubbed out.
15 THE COURT: I want counsel to recall
16 with regard to any videos yesterday I made
17 it very clear that no videos will be shown
18 to the jury unless the Court sees them
19 first.
20 As a matter of fact, we were supposed
21 to have those technicians come in to have
22 the Court view those videos. The Court
23 does not have the ability. We do not have
24 the resources to have video equipment at
25 the ready when we need them. So if you

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1 PROCEEDINGS
2 want the Court to pass on those videos, we
3 have to make them available to me and I
4 suspect that we should be doing that very
5 soon in advance of any attempts by any
6 anyone to offer anything into evidence and
7 please do not offer anything.
8 MR. DURST: Into evidence unless we
9 conferred about it beforehand, all right.
10 MS. COTTES: Well, plaintiff's lawyer,
11 obviously, is seeking to admit it. I
12 would think he would bring out.
13 THE COURT: As I sailed yesterday no
14 videos will be offered to the jury unless
15 we have previously reviewed them.
16 MR. DURST: And, Your Honor, with
17 regard to that I don't tend to use it
18 tomorrow but and so at the Court's
19 convenience I can play the video, you
20 know, on projection screen at any time I
21 actual have it here and I have the
22 equipment to play it and it's very brief.
23 I've played it for counsel.
24 THE COURT: We, will tomorrow decide
25 when we can fit this previewing into our

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1 PROCEEDINGS
2 scheduled because as I heard tomorrow the
3 plaintiff is anticipated to testify.
4 You're anticipating calling your out
5 of country witness and I heard something
6 about a doctor.
7 MR. DURST: Your Honor, tomorrow the
8 scheduled is the two intractable witnesses
9 are the Holland witness and -- Mrs.
10 Tonnaer, and Doctor Griffith the
11 vocational rehabilitation expert.
12 Cirro Rodriguez, if we reach him, it
13 will be great but he's here to testify but
14 again it's pretty crowded. I just don't
15 know how long the Holland witness will be.
16 THE COURT: Miss Cottes with regard to
17 that video, as I said the Court will view
18 it. We'll all view it before the jury
19 sees it.
20 Now Miss Scotto?
21 MS. SCOTTO: Your Honor, may I just
22 add one thing about the video. I have an
23 objection as well because it doesn't
24 depict the machine the way it appeared on
25 the day.
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1 PROCEEDINGS
2 THE COURT: As I say, until I see that
3 video I can't rule on any objections.
4 MS. SCOTTO: All right.
5 THE COURT: With regard to Miss
6 Scotto, your case law which you handed up
7 to the Court before the luncheon recess
8 that being Madera, the Affordable Housing
9 Foundation, and Affordable Housing
10 Foundation, third-party plaintiff verses
11 Sila (ph). Again that's a District Court,
12 Southern District decision.
13 To the extent that that decision cites
14 Second Department cases the Court is not
15 bound to follow second department cases
16 where there are First Department cases on
17 point.
18 As I previously indicated during,
19 before the luncheon recess, I was
20 following the First Department cases.
21 With reference to the Court's
22 recitation of Public Administration verses
23 Equitable Assurance that's a First
24 Department case which we discussed before
25 the luncheon recess.

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1 PROCEEDINGS
2 Counsel, you seem to argue that the
3 that particular case seems to indicate
4 that the illegal basis may be before the
5 jury for their consideration with regard
6 to the facts of the case, correct?
7 MS. SCOTTO: That's correct, Your
8 Honor.
9 THE COURT: All right. However, the
10 distinction in this case, unless you're
11 telling me that you're defendant's
12 operation was an illegal operation, that
13 your defendant was engaged in an illegal
14 activity, I don't see this case as being
15 on point with the facts in this particular
16 case.
17 In Public Administrative they cite to
18 Barker v. Calush (ph), and I quote:
19 In tort cases beginning with Barker v.
20 Calush, 63, New York Second, 19, the
21 criminal nature of an act has been held to
22 preclude recovery of damages based on the
23 consequences of that act only where the
24 act is a serious crime that directly
25 caused the injuries.

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1 PROCEEDINGS
2 This is not an instance where there's
3 a claim or you can defend by alleging that
4 Mr. Rodriguez was engaged in an illegal
5 act which was the cause or resulted in his
6 injuries.
7 Unless you know something about
8 illegal activities by Ferrara Food
9 companies that we don't know?
10 MS. SCOTTO: No, Your Honor. My
11 argument was not Ferrara engaged in
12 illegal activities but that the plaintiff
13 illegally purchased a social security
14 number and brought it to Ferrara Foods in
15 an evident for the -- to enable him to
16 work.
17 THE COURT: That is not the reading
18 that I derived from this particular case.
19 The particular case that I'm seeing is
20 that plaintiff was actively engaged in an
21 illegal activity i.e., the act of mixing a
22 dough in a dough machine and that that
23 illegal activity was the cause of his
24 injuries.
25 So in that regard I am not allowing

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1 PROCEEDINGS
2 you to bring out the status of Mr.
3 Rodriguez as an undocumented worker
4 because, frankly, as I indicated before
5 the public policy of New York precludes
6 that being before this jury because the
7 probative value is far outweighed by the
8 prejudice to the plaintiff.
9 MS. SCOTTO: And that includes, Your
10 Honor, the fact that he had an illegal
11 social security number.
12 THE COURT: That's exactly what I'm
13 saying.
14 MS. SCOTTO: I just wanted to make
15 sure I understood your ruling, Judge.
16 MS. COTTES: Your Honor, just to be
17 clear, there's also a video of a
18 deposition. You're not talking about
19 seeing that entire videotaped deposition
20 beforehand. The Rogal (ph) the one that
21 you --
22 THE COURT: I thought we struck a
23 balance? We would review the EBT, and
24 based on the EBT then we would go through
25 the EBT for any objections, etcetera.

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1 PROCEEDINGS
2 MS. COTTES: Okay.
3 THE COURT: All right. All right let's
4 go. We are in recess until tomorrow.
5 (Whereupon, the case is adjourned to
6 May 19th, for continued trial.)
7 * * * * *
8 (Continued on next page....)
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172

COUNTY OF BRONX : CIVIL TERM : IA-22
2 -----------------------------------------x
CIRRO RODRIGUEZ, :Index:
3 16482/95
Plaintiff(s). :
4
-against- :
5
NATIONAL EQUIPMENT CORP., :
6
Defendant(s)
7 -and- :
8 NATIONAL EQUIPMENT CORP., :
9 THIRD PARTY-PLAINTIFF(s)
10 -against- :
11 FERRARA FOODS & CONFECTIONS, INC., :

Defendant(s).
12 -----------------------------------------x
851 Grand Concourse
May 19th, 2004
14
B E F O R E:
15 HONORABLE NORMA RUIZ, JSC, & jury.
16 A P P E A R A N C E S:
17 PLAINTIFF: JOHN E. DURST, ESQ.

285 Broadway
18 New York, NY 10007
19 DEFENDANT: ROSE COTTES, ESQ.

Eustace & Marguez
20 311 Mamaroneck Avenue
White Plains, NY 10605
21
DEFENDANT: FRANCINE SCOTTO, ESQ.
22 NEWMAN FITCH ALTHEIM MYERS, PC
14 WALL STREET
23 NEW YORK, NY 10005
24
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1 PROCEEDINGS
5 the sworn jury.)
6 THE COURT: Present in the robing room
7 is counsel and the Court. Prior to our
8 being in the robing room counsel and the
9 Court were in chambers where Mr. Durst
10 showed us all the video that he is
11 attempting to offer into evidence through
12 a particular -- during the testimony of
13 the next witness that he will be calling.
14 Having seen the video, are there any
15 objections assuming that a foundation can
16 be laid?
17 MS. SCOTTO: Your Honor, I have an
18 objection because the photographs do not
19 depict the machine.
20 THE COURT: All right, the photographs
21 or the video?
22 MS. SCOTTO: I was going to take them
23 one at a time, if that's okay, Your Honor?
24 THE COURT: Well, let's address the
25 video right now.

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1 PROCEEDINGS
3 MS. SCOTTO: Okay, Your Honor.
4 The video does not depict the machine
5 the day it appeared on the date of the
6 occurence.
7 According to the plaintiff's
8 testimony, the machine was not able to
9 tilt on the date of the occurrence and did
10 not have a safety grate and it also did
11 not have the lower set of buttons located
12 on the right side of the machine and all
13 of those items are present in the video.
14 In addition, there are people in the
15 video that you can see and it also shows
16 the plaintiff, as well, and someone else
17 pointing to items in the machine. They
18 were, obvioulsy, speaking at the time and
19 that's muted out.
20 I don't know how the jury will
21 perceive that.
22 MS. COTTES: I would agree with that
23 especially to the extent it's cumulative.
24 There are photographs, to the extent
25 the photographs are in. They depict the

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1 PROCEEDINGS
2 same machine and my concern is that it
3 doesn't fairly and accurately depict the
4 machine and the question is is Mr. Durst's
5 client going to be able to pinpoint each
6 and every modification which was made? He
7 gave the microswitch and tilting
8 mechanism. I don't know if he knows the
9 machine well enough to do that.
10 THE COURT: All right, my concern is
11 with regard to the video. You're saying
12 that depicted in the video are safety
13 devices which were not in place at the
14 time the accident occurred?
15 MS. SCOTTO: That's my argument, Your
16 Honor, yes.
17 THE COURT: And the photographs that
18 are blowups of what I assume is the video
19 itself.
20 Do those photographs also show safety
21 devices that were not in place at the time
22 of the accident occurred?
23 MS. SCOTTO: Yes, they do, Your Honor.
24 THE COURT: Okay. Mr. Durst.
25 MR. DURST: Yes, Your Honor, the

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1 PROCEEDINGS
2 safety grate was part of the machine as it
3 existed prior to the accident and there is
4 the -- what happened was they removed that
5 safety grate, Ferrara Foods did, at a time
6 prior to the accident and then had Mr.
7 Rodriguez use the machine without the
8 safety grate.
9 So the fact that the safety grate is
10 there shows the condition of the machine
11 prior to the accident and then what
12 occurred was they removed that safety
13 grate and, of course, that is part of the
14 claim of negligence that the defendant has
15 against the third-party defendant and it
16 is also part of the claim of defect that
17 the plaintiff has in the case that the
18 safety grate should have been in place and
19 that it should have been interlocked so
20 that if it wasn't in place, the machine
21 would automatically turn off.
22 In addition, with regard to the video,
23 the defendants were present at the time
24 the video was taken several months after
25 the accident -- a few months after the

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1 PROCEEDINGS
2 accident. And then the safety grate is a
3 part of the machine, it was on prior to
4 the accident, and then had been taken off.
5 So it's not a subsequent remedial
6 measure. In fact, it's part of the way
7 the machine was before the accident. And
8 without being able to show the safety
9 grate, of course, we have no ability to
10 prove, to show that's the case, which is
11 to show the operative facts of the case.
12 With regard to -- and I only have one
13 thing that I'd like to ask the Court's
14 indulgence on is to lay the proper
15 foundation for this videotape. And for
16 the photographs I would want to call the
17 plaintiff, but I, as the Court knows, we
18 flew in a witness from Holland and
19 they're present to testify and the
20 plaintiff's testimony will probably take
21 the better part of the day and I planned,
22 as the Court knows, for having him on not
23 today but for tomorrow to occupy Thursday.
24 And to lay the foundation for the video,
25 I'd ask that I be able to call and for the

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1 PROCEEDINGS
2 photographs, be able to call Mr. Rodriguez
3 solely to lay that foundation and then
4 recall him again tomorrow for the full
5 brunt of his testimony.
6 THE COURT: Okay, taking the first
7 item with regard to the video. As it is in
8 its current viewing, it indicates or it
9 has a machine which is not in the same
10 condition that the machine was in at the
11 time that Mr. Rodriguez had the accident.
12 Indeed, what this particular machine
13 or the video of this machine depicts is if
14 a machine in the optimum condition, that
15 is the machine with all the safety devices
16 in place, as the machine should have been
17 at the time that Mr. Rodriguez had his
18 accident.
19 So that video demonstrates a machine
20 with subsequent repairs, that is with
21 safety device in place, with the grate in
22 place, with the switches which I believe
23 turned to on and off.
24 MS. SCOTTO: Tilted. Switches that
25 tilt.
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1 PROCEEDINGS
2 THE COURT: The switches that tilt
3 the machine and my understanding is that
4 at the time of the accident those switches
5 were not in place and one of the problems
6 with the machine was that it did not
7 properly tilt at the time that Mr.
8 Rodriguez had the accident.
9 So that at this juncture that video,
10 assuming that you were able to lay the
11 foundation, that video cannot come in
12 because it shows a machine with subsequent
13 repairs.
14 MR. DURST: Your Honor, may I address
15 this. The photographs. I just have this
16 one primarily here which shows Mr.
17 Rodriguez standing on the steps in the
18 position that he was in at the time of the
19 accident. And he testified that at his
20 deposition when asked by the defendants
21 does this fairly and accurately depict the
22 position he was in at the time of the
23 accident, and you'll note it also doesn't
24 show the safety grate at all and I would
25 ask, therefore, that at least we will be

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1 PROCEEDINGS
2 able to discuss this. That I be permitted
3 to offer this in evidence.
4 MS. SCOTTO: Your Honor, that
5 photograph does show the tilting mechanism
6 switches that were not present on the date
7 of the occurrence according --
8 THE COURT: Which is the --
9 MS. SCOTTO: The lower ones, Your
10 Honor.
11 MR. DURST: These.
12 MS. COTTES: Two boxes.
13 MS. SCOTTO: The upper ones turn the
14 machine on and off. The lower ones tilt
15 the machine. And the lower buttons were
16 not present on the date of the occurrence
17 based upon the plaintiff's deposition
18 testimony. So it doesn't fairly and
19 accurately depict the machine the way it
20 appears.
21 MS. COTTES: Even though you can't see
22 it is the safety grate on it?
23 MR. DURST: I don't know.
24 What difference does it make?
25 MS. SCOTTO: I can't tell.

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1 PROCEEDINGS
2 MR. DURST: With regard to the
3 buttons, Your Honor, I don't think the
4 jury would understand what those buttons
5 are and so I don't think there's any
6 prejudice by having photographs of those
7 buttons in there. And certainly even if
8 they could, the plaintiff would just say
9 that at the time of the accident those
10 buttons were not present and then they
11 would be able to take the photograph with
12 that proviso in evidence.
13 MS. SCOTTO: I think the jury will
14 understand what they're there for.
15 THE COURT: All right, at this point
16 Mr. Durst, is that a photograph that you
17 need to have entered with this witness or
18 can we do that with Mr. Rod -- when Mr.
19 Rodriguez testifies?
20 MR. DURST: I would like to use it
21 with this witness, you know.
22 MS. COTTES: I don't know how you're
23 going to do that because --
24 THE COURT: Let me suggest what we
25 could do. We can redact a portion of that

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1 PROCEEDINGS
2 photograph to exclude that switch.
3 MR. DURST: I've already done that,
4 Your Honor, on the computer so that the
5 one that projected would only show this
6 portion from here over. So I could
7 project the photograph or we can even just
8 block this out. You know, I could cut it
9 off.
10 THE COURT: We're not doing both.
11 You're offering the photograph. Is that
12 what you're doing?
13 MR. DURST: Yes.
14 THE COURT: Then we're not projecting
15 anything. All right.
16 Let's, if we're going to redact that
17 portion of that photograph, do you have a
18 photograph that's been redacted?
19 MR. DURST: I haven't printed it out.
20 No, I don't have a printout of it. But I
21 can just turn it off, I guess.
22 MS. COTTES: Now this witness from
23 Holland never saw the machine in person?
24 In real life?
25 MR. DURST: No.

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1 PROCEEDINGS
2 MS. COTTES: So how is she going to --
3 MR. DURST: She saw photographs of it.
4 MS. COTTES: -- say this is a fair and
5 accurate depiction of the photograph that
6 she once saw?
7 Is that what she's going so say?
8 MR. DURST: This is not -- I don't
9 know. I sent her photographs of the
10 machine. That's what she has or had.
11 THE COURT: Tell you what, why don't
12 we see what we can do in terms of
13 redacting that particular photograph. All
14 right.
15 Is that the only blow up of this
16 particular picture that you have, Mr.
17 Durst?
18 MR. DURST: Yes, Your Honor, it is.
19 But, you know, we can just take scissors
20 and cut it.
21 THE COURT: And there's no other
22 addition to that particular machine the
23 way it's viewed right there?
24 MS. SCOTTO: None that are visible.
25 THE COURT: Okay. That's all I care

184
1 MS. TONNAER - PLAINTIFF - DIRECT
2 about what the eyes can see.
3 MS. SCOTTO: Judge, I would just ask
4 it has to be a clean cut along that
5 margin.
6 THE COURT: We're going to do the best
7 we can.
8 MS. SCOTTO: As oppose to a jagged
9 one.
10 THE COURT: Actually off the record.
12 takes place off the record among the Court
14 sworn jurors.)
15 THE COURT: I assume, Mr. Durst, this
16 witness can lay a foundation for that
17 photograph?
18 MR. DURST: Mr. Rodriguez can and if I
19 can return to that issue of whether I'd be
20 permitted by the Court to recall Mr.
21 Rodriguez after calling him for the sole
22 purpose of laying the foundation.
23 THE COURT: You're calling this
24 witness and you're going to interrupt her
25 to lay the foundation with another

185
2 witness?
3 MR. DURST: I wanted to start the
4 testimony of Mr. Rodriguez to lay the
5 foundation for the -- just to lay the
6 foundation for you and then interrupt his
7 testimony and recall him tomorrow to
8 complete it.
9 I do have his deposition testimony
10 where he did accurately -- he did lay the
11 foundation at his deposition.
14 takes place at sidebar among the Court and
15 Counsel, outside the hearing of the sworn
16 jurors.)
17 THE COURT: We're going to give the
18 jurors 15 minutes. And, obviously, I want
19 you all to understand this is your
20 audience, okay. And I'm going to give
21 them 15 minutes.
22 In the meantime we're going to make
23 efforts to get the bindery to cut off,
24 redact portions of that photograph.
25 We will get the interpreter up here.

186
2 We will have an incamera conference to see
3 if he can lay the foundation for that
4 photograph.
5 MS. SCOTTO: Okay.
6 THE COURT: And then we'll have the
7 witness once -- if the foundation is laid,
8 comments on what she knows, if anything,
9 with regard to that photograph. What's
10 depicted in that photograph.
11 MR. DURST: And, Your Honor, I do have
12 the foundation on the deposition
13 transcript, Your Honor.
14 THE COURT: Mr. Durst, we're doing it
15 this way.
17 THE COURT: Okay. Let's see in the
18 meantime.
19 Anything else right now?
21 MS. COTTES: No, I don't have any.
25 the sworn jury.)

187
2 THE COURT CLERK: Case on trial.
3 Present in the robing room is the
4 interpreter of the Spanish language and
5 Mr. Rodriguez.
6 THE COURT: We are present in the
7 robing room outside the hearing of the
8 jurors who are in the jury room.
9 Present in the robing room are
10 counsel, Mr. Rodriguez and the official
11 Spanish interpreter whom we gratefully
12 thank for his willingness to come over
13 during his break from Judge Boyle's
14 hearing. So this is with a view towards
15 Mr. Rodriguez laying the foundation for
16 the introduction of a photograph.
17 Mr. Durst.
18 MR. DURST: Mr. Rodriguez, Your Honor
19 may I mark this?
20 THE COURT: We'll deem it marked for
21 the moment. Let's go.
23 previously Plaintiff Exhibit was deemed
24 marked for identification.)
25 MR. DURST: Mr. Rodriguez, can you

188
2 tell us what that photograph depicts?
3 Shows?
4 THE WITNESS: That's the machine where
5 I was working.
6 THE COURT: All right, I'm just going
7 to ask Mr. Rodriguez to raise his voice up
8 nice and loud so I can hear him.
9 MR. DURST: And is that the machine
10 that you were injured on on March 15th,
11 1995?
12 THE WITNESS: March 14th.
13 MR. DURST: Yes. Yeah. March 14th,
14 1995.
15 THE WITNESS: Yes, that was.
16 MR. DURST: Is that the position you
17 were in on that stepladder at the time
18 that your accident happened?
19 THE WITNESS: Yes.
20 MR. DURST: Okay, is that -- that's a
21 fair and accurate photograph of the
22 position you were in at the time the
23 accident happened?

189
2 Honor.
3 THE COURT: Any objection?
4 MS. SCOTTO: May I just -- no
5 objection.
6 MS. COTTES: No objection.
7 THE COURT: No objection? Okay, let's
8 -- thank you so very much Mr. Interpreter.
9 THE COURT CLERK: Can we put on the
10 record the marked exhibit?
11 THE COURT: Right at this point this
12 was --
13 THE COURT CLERK: Plaintiff's 3.
14 THE COURT: It is Plaintiff's Number
15 3, and it's now in evidence without
16 objection.
17 Thank you, Mr. Interpreter.
19 previously Plaintiff's Exhibit 3 was
22 THE COURT: Counsel very quickly.

190
2 sworn jurors, on the record.)
3 THE COURT: All right, we are about
4 to begin with the jurors coming out. We
5 have lost the Spanish Official Court
6 Interpreter who we had a hard time trying
7 to get. So if counsel will allow me, the
8 Court, to translate for the Court since we
9 forgot to swear Mr. Rodriguez in, I will
10 do that because I am bilingual.
11 Counsel agree to allow the Court to do
12 that? I know it's unusual.
13 MS. SCOTTO: I will agree, Your Honor.
14 MS. COTTES: Yes.
15 MR. DURST: I agree.
16 THE COURT CLERK: Sir, please raise
17 your right hand.
18 CIRRO RODRIGUEZ, a witness called by and on
19 behalf of the PLAINTIFF, upon being duly sworn,
20 testified as follows:
22 THE COURT CLERK: Thank you.
23 THE COURT: This is nunc pro tunc.
24 All right, thank you very much.

191
2 rise.
5 seats.)
6 THE COURT: Good afternoon, ladies and
7 gentlemen.
9 THE COURT: Have a seat. I apologize
10 profusely to each and every single one of
11 you.
12 Again we were dealing with legal
13 issues. We were also awaiting the
14 appearance of a Spanish interpreter for an
15 item that we had to deal with outside of
16 your presence.
17 Regrettably we have although you would
18 think there would be enough Spanish
19 interpreters here in the Bronx on staff,
20 we don't have sufficient number and
21 because Spanish is a language that is used
22 routinely in the Bronx, they are in great
23 demand throughout the building. So we
24 essentially had to borrow someone from
25 next door and send this person back, so

192
2 that was what was delaying us.
3 So again I apologize profusely but
4 look at it on the good side you get to
5 bond with each other and exchange phone
6 numbers and become best friends, okay.
7 All right, that being said, all right
8 Mr. Durst, do you have a witness to call?
9 MR. DURST: Yes, Your Honor. We call
10 Margo Peters Tonnaer to the stand.
11 THE COURT OFFICER: Ma'am, watch your
12 step getting in and out of the witness
13 box.
14 Please, remain standing in the witness
15 box.
16 THE WITNESS: Oh, in the box.
17 THE COURT OFFICER: Remain standing,
18 raise your right hand.
19 MARGO PETERS TONNAER, a witness called by and on
22 THE WITNESS: I swear.
23 THE COURT CLERK: Please be seated,
24 ma'am.
25 In a clear, loud voice so that the

193
2 people in the back of the courtroom can
3 hear you, please, state your name for
4 record. Spell your last name.
5 THE WITNESS: Spell my last name?
6 THE COURT: State --
7 THE COURT CLERK: State your name for
8 the record.
9 THE WITNESS: Margo Tonnaer,
10 T-O-N-N-A-E-R.
11 THE COURT CLERK: Where do you reside?
12 THE WITNESS: In the Netherlands,
13 Holland.
14 THE COURT CLERK: Very good. Thank you.
15 THE COURT: Good afternoon, Miss
16 Tonnaer.
18 THE COURT: All right, Miss Tonnaer.
19 May I ask you, please, and you are
20 speaking with a slight accent. I'm going
21 to ask you, please, to speak up nice and
22 loud --
24 THE COURT: --so that everyone can
25 hear you especially the court reporter and

194
2 especially the jurors who are sitting in
3 the box. Nice and loudly --
4 THE WITNESS: Yes.
5 THE COURT: --clearly.
6 THE WITNESS: Okay. Okay.
7 THE COURT: And slowly, all right?
8 THE WITNESS: I'll do my best.
9 THE COURT: Thank you very much.
10 You may inquire.
11 MR. DURST: Thank you, very much.
13 BY MR. DURST:
14 Q. Mrs. -- is it Mrs. Tonnaer?
15 A. Yes.
16 Q. Where is it that you work?
17 A. I work in our company in Holland which is
18 we manufacture dough mixing and kneading machines.
19 Q. And what --
20 MS. COTTES: Sorry, I didn't get that?
21 A. We manufacture dough mixing and kneading
22 machines.
23 THE COURT: All right. Again, Miss
24 Tonnaer.
25 THE WITNESS: I'm sorry. It's not my

195
2 own language.
3 THE COURT: Try to project your voice
4 at the back of the room.
5 THE WITNESS: Yes.
6 THE COURT: Nice and loud, all right.
7 We're used to loud in New York.
8 THE WITNESS: Okay.
9 THE COURT: Nice and loud.
10 Q. Now, we had asked you -- the plaintiff's
11 attorney had asked you to come to the United
12 States to testify in this case, right?
13 A. Yes.
14 Q. And we have spoken before about the case?
15 A. Yes.
16 Q. By telephone, correct?
17 A. Yes, we did.
18 Q. And we met last night and I told you
19 about what you would be doing here today,
20 correct?
22 Q. Other than last night, had we ever met
23 before?
24 A. No.
25 Q. Except by telephone?
196
2 A. No.
3 Q. Okay. What are you charging for your time
4 here today?
5 A. My time?
6 Q. Yes?
7 A. I charge the costs I have to make. The
8 costs I have to make and the hours I'm making.
9 Q. Now, would you describe the company that
10 you work for in Holland?
11 What the name of it is and describe a
12 little bit about the history of it?
13 A. The history? My husband and I we have a
14 company, as I mentioned, we make dough kneading
15 and mixing machines or mixing and kneading
16 machines. And it's about the same product we make
17 as my father-in-law made in the earlier years. He
18 started in the 40s, 50s that company.
19 MS. COTTES: That's the 40s and the
20 50s?
21 THE COURT: Again, Miss Tonnaer, I'm
22 going to ask you louder, and a little
23 clearer because you do have an accent and
24 I guess we're not trained with regard to
25 your particular accent.

197
2 THE WITNESS: I'm sorry.
3 THE COURT: So just let's just have a
4 read back so far of what that last
5 response was.
6 (Whereupon, the Court Reporter reads
7 back the requested testimony.)
8 A. He had the company in the '40s and '50s.
9 THE COURT: Just one second. Let's
10 get the name of your current company, all
11 right. Just --
13 THE COURT: You forgot to say it.
14 A. Our current company its name is Tonnaer
15 Mechanist B.V.
16 The company what I'm talking about which
17 was owned by my father-in-law was mentioned
18 Tonnaer Machine, Machine Fabriek. F-A-B-R-I-E-K.
19 You asked about '40s or the '50s, those
20 days my father in-law --
21 MS. COTTES: Judge, I'm going to ask
22 counsel to ask her a question. She's
23 going on a narrative.
24 THE COURT: I'll allow that last
25 portion.
198
2 Go ahead.
3 A. Okay. My father-in-law took over the
4 company from his father, so I don't know exactly
5 what time that was but they had a company in those
6 days from the century before, so it's a very -- it
7 was a very old company. It was manufacturing
8 those machines.
9 The company went bankrupt in '70s, so the
10 company we have now is our company and it's not
11 the same company my father-in-law had those days
12 but we have the same products. We are making the
13 same kind of machines so --
14 MS. COTTES: Your Honor, I'm going to
15 object at this point. She's going on in a
16 narrative.
18 Go ahead.
19 A. Okay. We are making the same kind of
20 machines as the machine which caused the accident.
24 Q. Describe a little bit more about your
25 involvement in the company and the predecessor's

199
2 companies?
3 A. Okay. I work in the company as long as I
4 know my husband which is about 20 years. And in
5 those days my father-in-law still was alive and he
6 learned me a lot of things about the company. The
7 products, the clients, how everything works.
8 Of course, he had the time to do it. So I
9 spent a lot of years with him learning from him.
10 He told me stories about clients, products
11 exporting.
12 MS. COTTES: Your Honor, I would just
13 ask the witness to identify him. She
14 talked about the father-in-law, husband.
15 THE COURT: Yes.
16 A. Father-in-law, yes. I'm talking about my
17 father-in-law. Nobody else.
18 He instructed me everything I had to know
19 about the business. He told me also about
20 exporting machines to the United States and in
21 those days --
22 THE COURT: All right. Just one
23 second, please, Miss Tonnaer.
24 I'm going to ask you because we don't
25 know the history that, you know, I'm going

200
2 to ask you to please be specific with what
3 you refer to as those days, all right.
4 A. Those days --
5 THE COURT: At this point -- just
6 listen to me.
7 THE WITNESS: Sorry.
8 THE COURT: At this point you were
9 dealing with a lot of different time
10 periods.
12 THE COURT: Please be specific when
13 you're talking about the '40s and '50s,
14 you're talking about the '70s.
15 What are you talking about when you
16 say those days?
17 A. In the days the company of my
18 father-in-law was still working, was not bankrupt
19 but still manufacturing machines '60s, '70s. Yes.
20 And when they exported machines to the
21 states, he told me all about it. He was also proud
22 about it because in those days '50s, '60s, '70s
23 they exported --
25 ask for a side-bar at this point.

201
2 THE COURT: Overruled at this point.
3 I'll let you continue. Go ahead.
4 A. And he told me about exporting to the
5 United States.
6 MS. COTTES: Objection. Hearsay.
7 A. Sorry?
9 A. And how they did it --
10 THE COURT: Go ahead.
11 A. I can't make my --
12 THE COURT: Go ahead. Go ahead.
13 A. Yeah. How did it work? You know, my
14 father-in-law was an older man. They didn't speak
15 English like we do. I'm not good at the English
16 but he couldn't speak English. In those days they
17 spoke French and German, but after World War II,
18 we learned to speak English in our country more.
19 So they had to find somebody in the United States
20 to sell the machines for him. It was not so easy
21 to go to the states in that time to look for
22 customers. That doesn't work like that especially
23 not when you don't know how to reach those people
24 and don't speak the language.

202
2 object again to the extent she's not being
3 asked questions.
4 THE COURT: Overruled. She's getting
5 out the preliminary matters that she
6 needs. Overruled.
7 Go ahead.
8 A. And that's when he, my father-in-law told
9 us --
12 Go ahead.
13 A. -- told me how it worked to export to the
14 United States and he told me that they exported
15 machines by NEC, National Equipment Corporation.
18 A. I think --
20 THE WITNESS: Can I explain that it's
21 not only from hearsay.
22 THE COURT: Let's hear that.
23 A. Yes. I know in those beginning years I was
24 learning. Yes, those years. We were on a fair, I
25 think it was in Germany, but that's some time ago.

203
2 There was also -- it was a fair for machines for
3 the food industries.
4 THE COURT: I'm sorry, say that
5 again. There was a fair for?
6 A. Machines for the food industries, so also
7 mixers, dough mixing and kneading machines. There
8 was also a stand -- I don't know is that correct
9 word -- stand of National Equipment Corporation.
10 My father-in-law lived in those days. He
11 was there with me. I was learning. There was also
12 my husband and a brother who was in the business
13 also and he -- we went to the stand of National
14 Equipment Corporation.
15 THE COURT: All right, at this point
16 Miss Tonnaer I'm going to ask you what you
17 saw and what you heard, all right?
18 What you, you did?
19 A. I saw --
20 THE COURT: Okay.
21 A. I saw, I was there, that my father-in-law
22 introduced his sons to a Mr. --
23 MS. COTTES: Your Honor, can we
24 clarify the time period.

204
2 MS. COTTES: The year?
3 THE COURT: Father-in-law. And what
4 year was this?
5 THE WITNESS: Beginning '80s.
6 A. '80s. -- to a Mr. Arthur Greenberg. So
7 the NEC, which was their business partner in the
8 United States knew that the old company from my
9 father-in-law was bankrupt and he says to me and
10 my husband and his brother, I would like to
11 introduce you to the National Equipment
12 Corporation. So when you like to export to the
13 United States --
14 MS. COTTES: Objection, hearsay .
15 A. -- you have --
16 THE COURT: Overruled. Overruled.
17 Go ahead.
18 A. -- you have somebody to go in business
19 with. That's what I saw.
20 Q. Okay. Now, do you know how is it that you
21 would -- why would you be interested in what
22 customers your father-in-law had and what, what,
23 what, what -- how he distributed his machines?
24 Why would you be interested in that?

205
3 MS. COTTES: Leading.
4 A. I think it's logical because I had to
5 learn and he did it before, so I don't have to
6 invent it out. So when he say I did it like that
7 in those days, when you like to export machines to
8 the United States, you can also use the National
9 Equipment Corporation because that was our
10 business partner in the United States and other
11 partners I don't know because it was by the
13 Q. Now, do you know was there any other
14 business that your father used to import dough
15 mixers to the United States besides National
16 Equipment Corporation?
17 MS. COTTES: Objection. Leading.
18 A. No.
19 THE COURT: All right. Sustained with
20 regard to the question.
21 Q. Okay, do you know of any other -- do you
22 know of any other companies that your father used
23 to import --
24 MS. COTTES: Objection. Same
25 question.
206
2 Q. -- to the United States dough mixers ?
3 THE COURT: All right, sustained.
4 Q. Let me think how to put this.
5 What other customers, what other
6 companies were there that you imported to the --
7 that Mr. -- that you learned that imports were
8 made to the United States?
9 MS. COTTES: Objection. Same
10 question. Rephrased.
12 THE COURT: Yes, sustained.
13 A. It's the only name I know.
15 A. Oh --
16 MS. SCOTTO: I ask that her
17 testimony, response, that be stricken.
18 THE COURT: All right. Let's go into
19 the robing room.
20 A. I'm sorry.
21 THE COURT: Ladies and gentlemen.
25 the sworn jury.)

207
2 THE COURT: I allowed background
3 information. I allowed the witness to
4 testify with regard to background
5 information as to how it is that she's
6 involved in this particular business.
7 At this point what I'm interested in
8 knowing is what is her knowledge with
9 regard to the inner workings of this
10 business and what is her knowledge of
11 that.
12 Did she review any paperwork or
13 anything with regard to the
14 father-in-law's prior business?
15 Did that paperwork follow the
16 father-in-law's prior business to her
17 current business with her husband?
18 That's what I'm interested in finding
19 out. What is her knowledge with regard to
20 the inner workings of this business and
21 did she gain -- how did she gain that
22 knowledge vis-a-vis the father's business
23 in terms of her position in this
24 particular business.
25 You understand what I'm saying?

208
2 MR. DURST: Sure. Sure.
3 MS. COTTES: Your Honor, so far it
4 appears to me that her entire testimony is
5 based upon hearsay what her father-in-law
6 told her. She was clearly about seven
7 years old when he was speaking to her.
8 THE COURT: Miss COTTES, she says that
9 she went into business with her husband,
10 so in her capacity in that particular
11 business she can testify as to what her
12 knowledge is as to how that particular
13 business got off the ground. That is her
14 knowledge, okay.
15 MS. COTTES: But she has testified as
16 to what she was told by her father-in-law
17 about a relationship with a company in the
18 United States.
19 MR. DURST: If the --
20 THE COURT: If the knowledge that she
21 has is the only business that she has with
22 regard to how exporting is carried over
23 from the previous business, she's free to
24 discuss that. That's her knowledge with
25 regard -- with regard to the running of

209
2 the business.
3 MS. SCOTTO: But, Your Honor, she
4 wasn't involved in the earlier business.
5 THE COURT: She doesn't have to be
6 involved in any earlier business.
7 So you're saying to me that if the
8 corporation that's been in existence for a
9 thousand years or a hundred years, someone
10 who's currently in that business has no
11 knowledge and can't glean that knowledge
12 from records from a hundred years before?
13 Is that what you're telling me?
14 MS. SCOTTO: I believe they could,
15 Your Honor, but in this instance --
16 THE COURT: That's what she's
17 testifying about.
18 MS. SCOTTO: That's not what she's
19 testifying about.
20 THE COURT: I will allow her to
21 elaborate that. We have a person who has
22 a bit of an accent. I don't know about
23 you, I'm having a little difficulty
24 understanding what she's saying. I want to
25 make sure that the jury understands what

210
2 she's saying, so I will allow a little bit
3 of latitude for her to explain how she
4 knew about the inner workings of her
5 business and how it is that she knew about
6 the inner workings of her father-in-law's
7 business.
8 MS. SCOTTO: Your Honor, if I just may
9 add, her company is not the successor in
10 interest to the earlier company.
11 THE COURT: That's not an issue.
12 MS. COTTES: She never worked at the
13 company.
14 THE COURT: She doesn't have to work
15 at that other company, so long as we find
16 out how it is that she gained knowledge.
17 By reading documents, by being introduced.
18 She just said she was introduced to this
19 person Mr. Greenberg. She actually met
20 this person as the NEC rep at a fair. As
21 far as I'm concerned, that is her
22 knowledge as to who this individual is.
23 MS. SCOTTO: And that would be in the
24 1980s but not when --
25 THE COURT: Yes and so?

211
2 MS. SCOTTO: -- not when this machine
3 was sold or manufactured.
4 THE COURT: I will allow her to
5 testify with what her knowledge is with
6 regard to the machine at issue, all right.
7 MS. COTTES: Even if it's based upon
8 what her father-in-law told her?
9 THE COURT: Is her father-in-law the
10 business person who headed that other
11 corporation?
12 MS. SCOTTO: The earlier one.
13 THE COURT: Discussing the inner
14 workings of a corporation?
15 MS. COTTES: An earlier one that she
16 was no part of.
17 THE COURT: She doesn't have to be a
18 part of that earlier organization. All
19 right.
20 MR. DURST: Your Honor, I tried to get
21 down what your --
22 THE COURT: You know, Mr. Durst, I'm
23 not here to tell you what to do.
24 MR. DURST: Okay.

212
2 MR. DURST: I'm sorry.
3 THE COURT: You ask the questions. I
4 rule on the objections.
5 As far as I can see, based on your
6 objections Miss Scotto, Miss COTTES, she
7 has demonstrated that she has
8 inner knowledge of inner workings of her
9 husband's corporation and how she managed
10 to get that inner knowledge.
11 MR. DURST: Would this be -- should I
12 ask you if I got it right? Describe your
13 knowledge of --
14 THE COURT: Mr. Durst, what did I just
15 say? I'm not giving you questions for you
16 to ask.
17 MR. DURST: Okay, okay.
18 THE COURT: I'm ruling on an objection.
19 MR. DURST: Sure. Okay, I'm sorry.
20 THE COURT: Now, we have another 15
21 minutes with this person. We're,
22 obviously, not going to be finished with
23 this person.
24 You have the expert coming in this
25 afternoon?
213
2 MR. DURST: Yeah, but I'd like to
3 finish with her and then we'll still have
4 time for him.
5 THE COURT: What I'm saying is when
6 your expert comes in this afternoon, your
7 expert understands that we're going to
8 finish with a witness before we take the
9 expert?
14 sworn jury.)
15 THE COURT: Objection's overruled.
17 BY MR. DURST:
18 Q. Mrs. Tonnaer, would you describe for the
19 Court how you gained your knowledge concerning the
20 inner workings of your business, the Tonnaer
21 business dough mixing and dough mixing
22 manufacturing and import/export?
24 Q. How did you get your knowledge?
25 MS. COTTES: Objection, asked and

214
2 answered.
4 A. I'm sorry, I don't hear.
5 Q. How did you learn --
6 A. Yeah?
7 Q. --about the exporting to the United
8 States?
9 Just give us -- was it documents or
10 just how was it that you learned about the
11 exporting to the United States?
12 It may be repetitious but go ahead.
13 A. Yeah, I learned about it from my
14 father-in-law, but also my husband, my
15 brother-in-law because they were there when there
16 were exports to the United States. I wasn't there,
17 but my husband and brother-in-law they were there.
18 They were younger but they were there and they
19 know that there were exports to the United States.
22 MS. COTTES: She's saying it's based
23 upon what her husband knows.
25 All right, Miss Tonnaer. I think the

215
2 question is did you actually work in the
3 business and look at documents, etcetera?
4 THE WITNESS: Yes.
5 THE COURT: That's the question I
6 think is being put to you.
8 THE COURT: That's the question with
9 regard to what you knew --
11 THE COURT: -- in terms of that
12 particular business that being, all right.
13 A. It's a long time ago, so I don't -- we
14 don't have any documents about the company of my
15 father-in-law any more. But in those years that I
16 was learning beginning of the '80s there was still
17 documents, there were invoices kept which showed
18 there was export to the United States.
19 But in our country you don't -- you have
20 to just have to keep ten years your documents of a
21 company and then you can destroy it. And because
22 you can't keep '30, '40s years documents from a
23 company and it was also bankrupt, when we had a
24 new business building, I hope I say it right,
25 everything was cleaned up and we only have our

216
2 current bookkeeping and invoices and documents.
3 Q. Based on that knowledge, what companies
4 were the dough mixers exported to in the United
5 States?
7 A. National Equipment.
8 MS. COTTES: What time period?
9 THE COURT: Yes, what, what period
10 are you talking?
11 Q. During the period you were learning the
12 business?
13 A. Yes.
14 Q. And you had documents showing the
15 exporting?
16 A. Yes. The documents which was showing the
17 export that were documents of the '50s, '60s,
18 '70s. It was a map with very old invoices that was
19 shown export to the -- to the National Equipment
20 Corporation.
21 Q. Did it show exports to any other
22 companies?
23 A. Sorry.
25 Q. Did anything show exports to any other

217
2 companies in the United States?
3 A. No. No.
4 Q. Now, I'm going to show you a photograph
5 which has previously been marked Plaintiff's
6 Exhibit 3, and ask you to take a look at that
7 photograph.
8 Now have you seen that machine before in
9 photographs?
10 A. Yes.
11 Q. Can you identify that machine for the
12 jury?
13 Describe that machine and tell us whether
14 or not it's a machine that was manufactured by
15 Tonnaer, either your company or the previous
16 company of the father-in-law?
19 MS. COTTES: Leading. No foundation.
21 A. Okay.
22 THE COURT: Do you recognize that
23 machine?
24 THE WITNESS: Yes, I recognize that
25 machine.
218
2 THE COURT: That's the question.
3 A. It's a machine from my father-in-law's
4 company. I see it at building construction. I saw
5 pictures of this machine before.
6 MS. COTTES: Objection as to
7 reference.
9 MS. COTTES: As to reference to other
10 pictures.
12 A. Yes. It's a Zet. Zet Blade Mixer. Sorry,
13 I'm not a native speaker.
14 Q. Is it also known as dough mixer?
15 A. It is a dough mixer, but that's the name.
16 You have several kind of dough mixers and a Zet
17 Blade Mixer is the name we use for this kind of
18 mixer. It's also known in regular here in United
19 States and continent as Zet Blade Mixer, so. But
20 it's manufactured by the company of my
21 father-in-law.
22 Q. Thank you.
23 A. I can see it cause it's an older type of
24 machine and I don't see machine cases which
25 secures everything in those days.

219
2 In those days my father-in-law
3 manufactured, and I'm talking about '50s, '60s,
4 and '70s, for the ladies. The machines, we had
5 different rules in Holland in the Netherlands
6 where I come from than here. They were very strict
7 here.
9 THE COURT: Sustained, and that's
10 stricken.
11 THE WITNESS: Sorry, can I go on?
12 THE COURT: That's stricken. All
13 right. That objection is sustained, all
14 right.
15 Q. Would you describe how that machine works
16 for the jury?
17 A. Yes.
18 MS. COTTES: Objection, I don't know
19 based upon what she said how would she
20 have that knowledge.
21 THE COURT: Sustained, sustained.
22 A. I know, I know how it works. We build the
23 same machines now.
25 THE COURT: Miss Tonnaer.

220
3 THE COURT: All right, when I rule on
4 an objection, you have to wait for a
5 question.
6 THE WITNESS: Oh, I'm sorry.
7 THE COURT: All right. Go ahead.
8 Q. Do you have personal knowledge as to how
9 that machine works?
10 A. Yes, I know because we are building --
11 MS. COTTES: Objection, she's never
12 seen the machine.
14 A. I'm sorry.
15 THE COURT: Ask the question. Does
16 she have personal knowledge with regard to
17 how that machine works?
18 Q. Do you have personal knowledge as to how
19 that machine works?
20 A. Yes, I -- I do. I do. Because we still
21 get those machines in our company as trade-in
22 machines. So when we build a new machine, we get
23 those old machines, we take them back as trade-in
24 and I know, of course, how they work.
25 Shall I --
221
2 Q. So can I ask you to describe for the jury
3 how that machine works?
4 A. Yes, this machine.
5 MS. COTTES: Objection, she's never
6 examined the actual machine.
7 THE COURT: Overruled. Overruled. Go
8 ahead.
9 A. The bowl it's mixing bowl. It's right up.
10 They add ingredients from above. It could be
11 flour, water. Everything they need to have for
12 the ingredients to product they like to make. They
13 add it over here. Then start the mixing process,
14 they put on a button. So simply arms which are
15 inside are very heavy cast steel arms. They turn,
16 they rotate like this into each other. You have
17 to imagine there's a Zet. A "Z". Sorry a "Z",
18 another one, and they rotating into each other.
19 So it's very heavy because the product you have to
20 make also say it's not mixing but it's really
21 kneading. It's very heavy. And then when the
22 process is finished, the batch is finished, this
23 bowl has to be tipped. It's in this position. In
24 working position --
25 THE COURT: All right, is that up?

222
2 A. -- to empty.
3 THE COURT: It's up? Is that what
4 you're saying?
5 A. Sorry. It's up, yes. And to empty it it
6 has to go down. Also to clean it because you can't
7 -- it's very large bowl and to empty it and to
8 clean it you have to tilt it down.
9 When it's tilted down to empty the bowl,
10 you can -- you can't pull it out and that's also
11 very dangerous. That you can't pull it out. You
12 don't have to pull it out. There must be a safety
13 rack or a guard which is secured by electricity so
14 that nobody can come near the mixing bowl because
15 you can imagine when it has to be emptied those
16 arms have to push the dough out. So when somebody
17 comes near such a machine, it could be killed.
18 It's a very dangerous moment. So, that's how they
19 should work.
20 This machine that's an old one. They
21 didn't have --
22 MS. COTTES: Objection, she's never --
24 MS. COTTES: -- she's never seen the
25 actual machine.
223
2 THE COURT: Excuse me. That objection
3 is overruled.
4 All right, you're looking at the
5 photograph and you're testifying with
6 regard to that photograph?
7 THE WITNESS: Yes. Yes.
8 THE COURT: Okay.
9 A. Go ahead?
10 The machine is not secured. You can see
11 it also on this gear wheels, G-E-A-R, they're not
12 secured. In those days they didn't secure the
13 machines because their regulations were not
14 that --
17 THE COURT: All right, sustained with
18 regard to regulations. All right.
19 A. Oh, okay. But they weren't secured.
20 Q. Okay. So when your company -- when your
21 father-in-law's company would sell the machine,
22 did they -- did they attempt to cause the machine
23 to comply with regulations of the company?

224
3 Q. Now in that position there --
4 A. Yes.
5 Q. -- can you remove the dough from the bowl
6 --
7 A. No.
8 Q. -- if it's in that position?
11 A. No. Oh, do I have to wait?
12 THE COURT: May I have that question
13 again, please.
14 (Whereupon, the requested testimony
15 was read back by the Court Reporter.)
17 Q. In the position it's in there?
18 A. Yes.
19 THE COURT: In the photograph?
20 Q. In the photograph?
21 A. Yes, in the upward position, yes.
22 Q. In the upward position?
23 A. In the working position, yes.
24 Q. Is that a position for removing the
25 dough?
225
2 A. No.
5 THE COURT: All right. Sustained.
6 Q. I mean what position, what functions would
7 you do when it's in that position?
10 THE COURT: Overruled, if you know. Do
11 you know?
12 THE WITNESS: Yes. Of course.
13 THE COURT: Okay.
14 A. It's just the working position. The
15 kneading position when it's working. That's the
16 only position and filling the ingredients and to
17 work with it. But not to empty it and not to clean
18 it. Simply not possible. The -- you should be
19 having such arms. To do that by hand that's not
20 possible. So you have to tip it and then the arms
21 can push it out, that's the working of the
22 machine. But in the upside position no you can't
23 clean it. It's too dangerous.
24 Q. Well, you would have to -- when you're
25 removing material, are the blades intending --

226
2 intended to be moving?
3 A. Yes, they have to, yes. When there's a
4 safety device, when there's a safety device.
5 Otherwise, it's too dangerous.
6 For emptying yes you have to be move.
7 You have to rotate the arms yes, and in the
8 opposite position.
9 So this is the mixing position and to
10 empty the machine you have to -- they have to
11 rotate it in the opposite position so it can push
12 the product out.
13 I hope I make myself clear.
14 Q. Now, when the machine's in that
15 photograph --
16 A. Yes.
17 Q. -- does it have the original machine that
18 was sold by your father-in-law?
19 Does it have -- did it have safety
20 interlocks?
21 A. No.
22 MS. COTTES: Objection. She's never
23 seen the actual machine.
25 THE COURT: Excuse me. If you know,

227
2 what those machines would of had?
3 THE WITNESS: Yes. They didn't. They
4 did not.
5 MS. COTTES: Those machines or this
6 exact machine?
7 THE COURT: Excuse me?
8 A. They were -- sorry. They were all made the
9 same. They were built in series. In series.
10 Sorry, I have to repeat it, but there
11 were no safety. There was no safety in those
12 years in our country.
15 THE COURT: All right, not with regard
16 to your country?
17 All right, let's have another
18 question.
19 MR. DURST: I have no more questions,
20 Your Honor.
21 THE COURT: Cross.
22 MS. COTTES: You want me to start Judge
23 or do you want to break?
24 THE COURT: Actually you know what,
25 ladies and gentlemen, we've reached the

228
1 PROCEEDINGS
2 luncheon recess.
3 All right, ladies and gentlemen.
4 We're going to have a full afternoon, okay
5 everyone. So please be back here at about
6 2:10. All right everyone. Ready to
7 proceed at 2:10, and we'll finish with
8 this witness and there will be another
9 witness, all right.
10 So, please, ladies and gentlemen, do
11 not discuss the case amongst yourselves,
12 with anyone else, do not allow anyone to
13 discuss it with you or in your presence.
14 If anyone attempts to do so, please, bring
15 it to my immediate attention.
16 Please don't speak with any of the
17 attorneys, parties or witnesses and we'll
18 see you back here at 2:10. Remember you
19 will take any and every elevator bank
20 except for elevator bank A. Have a good
21 lunch everybody.
22 THE COURT OFFICER: Jury, please. All
23 rise.
24 THE COURT: You may step down, Miss
25 Tonnaer.
229
1 PROCEEDINGS
2 THE COURT OFFICER: Jury exiting.
4 courtroom.)
5 THE COURT: Have a good lunch, ladies
6 and gentlemen.
7 THE COURT: Everyone back here at
8 2:10.
10 (Whereupon, witness resumes the
11 witness stand, Miss Tonnaer.)
13 rise.
16 seats.)
17 THE COURT: All ladies and gentlemen,
18 have a seat everyone.
19 I trust everyone had an enjoyable
20 lunch, and as I explained to you
21 yesterday, if because you're having that
22 ingestion if super, duper size caffeine,
23 if you need a break, just communicate to
24 us somehow that you need a break.
25 Again, ladies and gentlemen, please,

230
1 PROCEEDINGS
2 if you have any difficulty hearing or
3 understanding any witness or the attorneys
4 or the Court, I don't want you to sit
5 there and think you're being polite by not
6 saying anything or indicating to me
7 because as I explained as the judges of
8 the facts you need to see and hear
9 everything and understand everything that
10 is going on. So if at any time you have
11 any difficulty, I need for you to
12 communicate that to me somehow. All right
13 everyone?
14 THE JURORS: Yes.
15 THE COURT: Are we on the same page?
16 Yes? Okay.
17 Miss COTTES: You have cross.
20 BY MS. COTTES:
21 Q. Miss Peters, how are you this afternoon?
22 How are you this afternoon?
23 A. I'm fine.
24 Q. Now, you came in from the Netherlands, is
25 that right, to testify at this trial?

231
1 MS. TONNAER - PLAINTIFF - CROSS/MS. COTTES
2 A. Yes.
3 Q. When did you come in?
4 A. Yesterday.
5 Q. What time?
6 A. We flew in at 4:15 local time.
7 Q. And how was it that you received plane
8 tickets to come here?
9 A. I ordered them.
10 Q. You bought them yourself?
11 A. Yes.
12 Q. And is Mr. Durst reimbursing you for that
13 flight?
14 A. Of course. He has to.
15 Q. Now, your brother came with you, as well,
16 didn't he?
17 A. Yes. Yes.
18 Q. And what was the reason for that?
19 A. Because I didn't want to travel alone.
20 Q. And Mr. Durst paid for his plane, as
21 well, is that right?
22 A. He has to. I have to come. I can't come
23 alone. You have to understand when I travel alone,
24 I had to come yesterday and I'm leaving tomorrow.
25 It's very, uhm, I'll be -- I'll be, how do you

232
2 call it, I'm not very fit at that time. Of course,
3 I have --
4 Q. I don't need to know why you're not fit?
5 A. Okay, please. You asked.
6 Q. Could I ask you how much the round trip
7 flight for each of you cost?
8 A. Flight? Fifteen hundred and fifty
9 dollars, I think.
10 Q. Per person?
11 A. Approximately.
12 Q. Per person?
13 A. Yes.
14 Q. Now, you testified earlier that you were
15 being paid for being here, is that right?
16 A. Yes.
17 Q. Could you tell me a little bit about
18 that?
19 A. What do you want to know?
20 Q. Are you being paid -- you are hourly?
21 A. Yes, I will charge my hours afterwards
22 because I don't know how long I have to be here.
23 Q. Okay, and how much will you charge per
24 hour?
25 A. $150.
233
2 Q. And will that include each and every hour
3 you are in flight coming to New York and then on
4 the flight going back to the Netherlands?
5 A. Yes, of course. When we do business with
6 our customers, we charge the same thing. Ever if I
7 have to go to New York to testify at the same time
8 I could work at home, so I think it's very normal.
9 It's common in our country. I think it's here
10 also.
11 Q. When you say -- when you do business with
12 your customers, is Mr. Durst a customer of yours?
13 A. No. Customer? No.
14 Q. But he's going to pay you for being at
15 this trial for coming here to New York to testify
16 for him and his client?
17 A. Yes.
18 Q. And how long was the flight from the
19 Netherlands?
20 A. How long? The flight only is 8 hours.
21 Q. So just for your time on the plane you're
22 receiving twelve hundred dollars for your trip
23 here and then another twelve hundred for your
24 flight back, is that right?
25 A. I think.
234
2 Q. Well, figure it out.
3 A. Do I have to do it now?
4 Q. Yes.
5 THE COURT: All right, Miss Tonnaer,
6 let's understand you're not engaging in a
7 conversation with Miss Cottes or any of
8 the attorneys. They ask you a question and
9 then you answer the question.
11 THE COURT: If you can.
12 A. Uhm, if you call -- do you call -- do you,
13 you know that 8 by 150 how much is that?
14 Q. That's twelve hundred dollars?
15 A. Twelve hundred? Okay.
16 Q. And let's assume that you end up being in
17 this courthouse for approximately 7 hours today.
18 Well, that would be approximately another thousand
19 and fifty dollars, is that right?
20 A. When I should be here 7 hours, yes.
21 Q. And in addition you came in yesterday.
22 Did you stay at a hotel?
23 A. Yes.
24 Q. And where was that hotel?
25 A. 55th Street.
235
2 Q. Very nice. And who put you up in that
3 hotel?
4 A. A travel agent.
5 Q. Okay, and who paid for the hotel stay?
6 A. It has to be paid, yes. I'm not leaving.
7 I am -- I will -- I still have my suit cases
8 there.
9 Q. Who is paying for them?
10 A. I am and I charge it.
11 Q. So Mr. Durst will ultimately pay you?
12 A. Yes, of course. He wants to have me
13 here.
14 Q. He's paying for your brother to stay, as
15 well?
16 A. Yes, of course. My husband couldn't
17 come. He couldn't and I don't like to travel
18 alone.
19 Q. Did you ask Mr. Durst if you could bring
20 anyone else?
21 A. Yes, of course, I did.
22 Q. And who did you ask him if you could
23 bring?
24 A. My brother.
25 Q. Okay, other than your brother did you ask

236
2 him --
3 A. No.
4 Q. --if you could bring anyone else?
5 A. No, no. Why should I. My brother had
6 the time to come, to accompany me.
7 Q. Now, in addition to the $150 per hour
8 from the time you leave the Netherlands until you
9 return to the Netherlands, plus your round trip
10 flight for you and your brother, are you receiving
11 any other compensation from Mr. Durst or anyone on
12 his behalf?
13 A. No.
14 Q. Okay. Now, Mr. Durst asked you earlier if
15 you met with him last night to prepare to take the
16 stand today?
17 A. Yes.
18 Q. And you did?
19 A. Yes.
20 Q. And where did you meet with him?
21 A. In the hotel.
22 Q. For how long?
23 A. I think about an hour. I don't know for
24 sure. I was very tired when we came back and we
25 had a drink and it was first time I met Mr. Durst

237
2 and we only talked by the phone before so I have
3 to meet him that I think that's normal. I think
4 about an hour.
5 Q. And who else was there when you met with
6 Mr. Durst?
7 A. My brother, of course.
8 Q. Anyone else?
9 A. And his associate.
10 Q. And Mr. Burson, Mr. Durst's partner?
11 A. Yes. Yes.
12 Q. The gentleman on the right there?
13 A. Yes.
14 Q. And in addition to meeting with Mr.
15 Durst, did you meet with Mr. Burson and talk about
16 what you were going to testify to today?
17 A. No. We met him because he picked us up
18 from the airport.
19 Q. What airport was that?
20 A. J.F.K.
21 Q. Okay, he met you there?
22 A. Yes.
23 Q. He drove you to your hotel?
24 A. Yes.
25 Q. Did he drive you here today?

238
2 A. No.
3 Q. How did you get here today?
4 A. By a cab.
5 Q. And who's paying for that cab?
6 A. I paid.
7 Q. And will Mr. Durst reimburse you for that
8 cab?
9 A. I think so, yes.
10 Q. And how are you getting back to the
11 hotel?
12 A. I don't know yet. I'm sorry. I don't
13 know yet. We did not talk about it yet. I don't
14 know what the time is I have to fly back this
15 evening.
16 Q. Did you come to the courthouse you and
17 your brother alone today?
18 A. Yes.
19 Q. And at what point this morning did you
20 see Mr. Durst or Mr. Burson?
21 A. Here, uhm, when we arrived.
22 Q. Where did you plan on meeting him?
23 A. Here. Outside.
24 Q. Okay. Outside the courtroom?
25 A. No -- yes, outside the courtroom in the

239
2 hallway.
3 Q. And when you spoke to Mr. Durst last
4 night, your brother sat in the entire time for the
5 conversation?
6 A. Yes.
7 Q. And what was the nature of that
8 conversation?
9 What did you talk about?
10 A. What I have to expect here. Sorry for my
11 English.
12 Q. Tell us what Mr. Durst told you would be
13 asked of you and what you would be expected to
14 say?
15 A. He told me -- I'm not familiar with the
16 American rules and trials and those things, so he
17 -- I'm not used to testifying before a jury. We
18 don't have that. So he explained everything to me
19 and he said he is going to ask me some questions
20 about the machine which I know about and some
21 other things.
22 Q. Okay, did he tell you that what he
23 ultimately needed you to say here today?
24 A. No, I say what I think is -- that's
25 truth.
240
2 Q. Did he tell you that his goal with
3 producing you on the witness stand today was to
4 link National Equipment --
5 A. No. No.
6 Q. -- to this machine?
7 A. No.
8 Q. Did he show you any photographs?
9 A. Uh, not photographs I didn't saw before.
10 Q. Did he show you any photograph?
11 A. Yes.
12 Q. Last evening?
13 A. Sorry.
14 Q. Did he show you any photographs last
15 night?
16 A. Yes, but I knew them already.
17 Q. How did you know them?
18 A. I knew them because several years ago
19 they thought that we were the manufacturer of the
20 machine, but I wasn't. It was the company of my
21 father-in-law, so they faxed us some pictures.
22 Q. Okay. Pictures of the machine?
23 A. Yes.
24 Q. And other than seeing pictures of this
25 machine --
241
2 A. Yes.
3 Q. -- did you ever get a serial number of
4 this machine?
5 A. No.
6 Q. Did you ever examine it in person?
7 A. No.
8 Q. And you've looked at a photo?
9 A. Several photos.
10 Q. This morning, well, you've look at one?
11 A. Yeah.
12 Q. That's, that's up in front of you here?
13 A. Yes.
14 Q. Now, did you ever go to the factory where
15 this machine was at the time this picture was
16 taken?
17 THE COURT: Miss Cottes, please,
18 don't do that, all right.
19 If you want her to see something, ask
20 the officer to do that, all right.
21 MS. COTTES: Can you show her the
22 photographs.
23 I apologize.
24 Q. Did you ever touch the steel or the metal
25 that the machine was made of and test it?

242
2 A. No, because I wasn't even born at that
3 date the machine was built.
4 Q. You weren't even born?
5 A. So I couldn't, no.
6 Q. And what date would you say this machine
7 was manufactured?
8 A. My husband, my brother-in-law and I, we
9 saw the pictures of the machine and it's between
10 1950, '59 they built those machines.
11 Q. Okay, and when you say they --
12 A. The company.
13 Q. -- you've testified --
14 A. Company of my father-in-law, the former
15 the --
16 Q. And that's Machine Fabriek Tonnaer?
17 A. Yes.
18 Q. And looking at that photograph --
19 A. Yes.
20 Q. -- that you referred to this morning --
21 A. Yes.
22 Q. -- there are no words in and around that
23 machine in that photograph that say Machine
24 Fabriek Tonnaer are there?
25 A. No, they cut it off. I don't know who did

243
2 it, but they cut it off because I saw the name.
3 Q. I'm asking you what's in that photograph?
4 A. I'm sorry?
5 Q. I'm asking you what's in that photograph?
6 I'm going to ask you to let me finish my
7 question before you start answering, please.
8 A. I'm sorry.
9 Q. Now, do you know if this photograph is
10 the one you were shown last night or at any prior
11 time?
12 A. Yes, I saw it.
13 Q. And at no time isn't -- is it a fact that
14 at know time did you see the names National
15 Equipment on that machine?
16 A. No.
17 Q. Now other than speaking to Mr. Durst last
18 night for an hour, I know you haven't met him in
19 person before, but you've spoken to him on many
20 occasions before last night, haven't you?
21 A. Not many. Some. Not many. No.
22 Q. What's some?
23 How many times per year in the last five
24 years?
25 A. On the phone I spoke with him perhaps

244
2 three or four times.
3 Q. And what was the nature of those
4 telephone calls?
5 A. The nature of those calls, at first I was
6 -- and I'm talking about, I think, 1990, he was --
7 he wanted to know whether we were the manufacturer
8 of the machine.
9 Q. In 1990?
10 A. Yes. '99. 1999, I'm sorry.
11 THE COURT: 1999 you said?
13 Q. Okay, and what other -- what other things
14 did you speak to him about during these phone
15 conversations?
16 A. He asked me what I knew about those
17 machines, and whether I know where did they go
18 and all the things mainly I told before here.
19 Q. So is it fair to say at some point since
20 1998, is it --
21 A. Nine, yes.
22 Q. -- you were sent some photographs of a
23 machine by Mr. Durst's office?
24 A. Yes.
25 Q. And who looked at those photographs?

245
2 A. My husband, my brother-in-law, and
3 myself. My father-in-law was dead. He couldn't
4 look at the photos any more. But we have leaflets
5 of those days. And my husband and my
6 brother-in-law they know the machines because they
7 were there.
8 Q. Let me ask you this.
9 A. Yes.
10 Q. None of you ever took a look at the
11 actual machine involved in this accident?
12 Never saw it in person, right?
13 A. No, of course not. You do not go into
14 the United States to look at the machine for
15 nothing.
16 Q. So based upon what you saw in the
17 photograph sent to you, you said that looks like
18 one of my father-in-law's machines?
19 A. Not looks like. It is one of my
20 father-in-law's machines.
21 THE COURT: Miss Cottes, all right.
22 Our court reporter is getting a little
23 frustrated Miss Cottes and Miss Tonnaer.
24 Let's just wait until one person finishes
25 the question and let's wait until the

246
2 other person finishes the answer.
3 Let's see if the Court reporter got
4 everything down.
5 Q. But neither you --
6 THE COURT: Let's see if the Court
7 reporter got everything down.
10 THE COURT: Were you finished with
11 that answer?
12 THE WITNESS: Oh, yes.
13 THE COURT: Okay. Next question.
14 Q. Neither you nor your husband nor your
15 brother every looked at this machine in person
16 ever, is that right?
17 THE COURT: You have to respond?
18 A. Yes. Yes.
19 Q. And you were never told a serial number
20 or any kind of identifying information with
21 respect to that actual machine were you?
22 A. It isn't necessary.
23 Q. Well, I'm not asking you was it
24 necessary.
25 Were you told a serial number?

247
2 A. No.
3 Q. Given any identifying information?
4 A. Identifying information was placed here
5 on photo they cut off.
6 Q. Okay, and what was that?
7 A. A name plate Tonnaer Machine Fabriek B.C.
8 Tour Holland. Place Holland name --
9 Q. Okay. And I assume that every machine
10 that you're saying was a Machine Fabriek Tonnaer
11 of that sort, had that type of name plate, is that
12 right?
13 A. Yes. Yes.
14 Q. But there were different ones, weren't
15 there?
16 A. No. Yes and no. Can I explain it? They
17 were different. You have different types of
18 machines but if you have a Zet Mixer, the Zet
19 Mixers are all the same, the powder mixers are all
20 the same. But there you -- all dough mixers you
21 understand it's a Zet Mixer that are all the same.
22 THE COURT: It's a what?
23 A. Zet, Zet blade. Zet. Z-E-T.
24 Q. And is it fair to say your father-in-law's
25 company manufactured more than one --

248
2 A. Of course.
3 Q. -- dough mixing machine of this kind --
4 A. Yes, yes.
5 Q. --in the 1950s?
6 A. Yes.
7 Q. And he manufactured more in the 1960s,
8 didn't he?
9 A. I don't know whether it was more.
10 Q. Well, you're here today to talk about
11 your knowledge of your father-in-law's company,
12 right?
13 A. Yes. Yes.
14 Q. Tell me when he was in business?
15 A. Sorry?
16 Q. Tell me when was he in business?
17 A. Until he went bankrupt '74.
18 Q. So he went bankrupt when you were --
19 THE COURT: All right. We've
20 established that. Next question. Let's
21 move on.
22 Q. Let me ask you this Miss Tonnaer, how old
23 are you?
24 A. 43 almost.
25 Q. Okay, so 30 years ago you were 13 years

249
2 old when your father-in-law's company went
3 bankrupt, is that right?
4 A. Yes. Yes.
5 Q. And then he died in 1991, right?
6 A. Yes.
7 Q. And you were approximately 30 years old
8 then, right?
9 A. Yes.
10 Q. You never worked for his company Machine
11 Fabriek Tonnaer, right?
12 A. Mr. Tonnaer advised our company, I told
13 also earlier.
14 Q. My question is you never worked for your
15 father-in-law's company did you?
16 A. He worked for us.
17 Q. He worked first?
18 A. He worked for our company. He teached me
19 everything.
20 Q. Okay, that's not what I'm asking you. You
21 were 13 when his company went under?
22 A. Yes.
23 Q. And from the moment you were born, until
24 you were 13 were you ever an employee at Machine
25 Fabriek Tonnaer?
250
2 A. Of course not. Of course not. That's
3 obvious.
4 Q. In those 13 years, did you even know your
5 husband or father-in-law?
6 A. No, I met my husband I was 20.
7 Q. So you met your father-in-law in
8 approximately 1980, is that right?
9 A. I knew him ten years. I worked with him
10 everyday. He taught me everything. He --
11 Q. So what time period did you know him?
12 A. Ten years.
13 Q. From 1981?
14 A. Beginning of the eighties till he died. I
15 nursed him dying.
16 MS. COTTES: I would just move to
17 strike the portion that's not responsive.
18 Q. Now, you were never records custodian?
19 You never kept the records for your
20 father-in-law's business while it was in business,
21 did you?
22 A. They were in our cellar.
23 Q. Did you ever keep them?
24 A. What do you mean by keeping?
25 Q. Did you ever write down records which

251
2 reflected what machines left the Netherlands and
3 went elsewhere?
4 A. We worked together. You must understand
5 my father-in-law was very proud of what he did. He
6 informed me, so, yeah, I come to the question. So
7 we looked about old invoices and things like that.
8 Leaflets invoices. So that's why I know.
9 Q. Well, my question --
10 THE COURT: Just one second. You
11 looked at them, is that what you're
12 saying?
14 THE COURT: All right, so her
15 question was did you review them at any
16 time when they were in -- you say you kept
17 them in the basement?
19 THE COURT: So that was her question
20 did you have an opportunity --
21 THE WITNESS: Yes, of course.
22 THE COURT: -- during the time --
24 THE COURT: -- that you were in
25 business --
252
2 THE WITNESS: Yes.
3 THE COURT: -- to review the
4 materials of your father-in-law's company
5 while it was in the business basement?
6 THE WITNESS: Yes.
7 THE COURT: Next question.
8 Q. What records of your father-in-law's
9 company have you had an opportunity to review
10 before coming here today?
11 A. Uh, sorry. Can you repeat it?
12 Q. You've just said that you --
13 A. Yeah.
14 Q. --you have reviewed records --
15 A. Yes.
16 Q. -- from Fabriek Tonnaer that went out in
17 business 1974?
18 A. Yes. Yes.
19 Q. And they are all in your basement?
20 A. They were all in my basement. I
21 explained that before.
22 Q. Okay, at what point did you review them?
23 A. When he was talking to me, he was telling
24 me about his former company. He exported -- the
25 exportation of the machines, how it worked and

253
2 they were put in our basement because we have a
3 large house with a large basement so you have to
4 keep them.
5 He kept them there. He liked to have
6 kind of souvenirs of his company which was
7 bankrupt, went bankrupt and he, of course, very
8 bad time for him so he liked to keep them. And
9 when we had to move all that stuff because we
10 needed the space, we saw all those records because
11 they are so old you don't keep those records.
12 Q. Let me ask you this. Did you review
13 specific records with respect to machines that
14 were manufactured in the 1950s?
15 A. Yes.
16 Q. And '60s?
17 A. Yes, invoice.
18 Q. Okay. And did you have any serial numbers
19 or anything?
20 A. No, they didn't use serial numbers. I'm
21 sorry you, perhaps you can't understand. They do
22 that here but they didn't use serial numbers.
23 Q. So other than a nameplate, there was no
24 identifying features on some of these machines?
25 A. Not. No. Perhaps it's too hard to

254
2 mention but they worked different in those days
3 than they worked here. It's mass-production here.
4 They use serial number. That was more specific
5 approach.
6 Q. Is it fair to say that you don't know if
7 you ever saw -- during your review of records with
8 your father-in-law in the 1980s -- that you never
9 saw a specific record regarding this specific
10 machine?
11 A. This specific? I should see a record of
12 this specific machine?
13 I don't know whether the record was of
14 this specific machine. There were --
15 Q. That answers my question.
16 THE COURT: Let her finish. Go ahead
17 finish the answer.
18 A. There were a lot of invoices of Zet Blade
19 Mixers and other kinds of machines to National
20 Equipment. How could I know whether it was this
21 specific machine.
22 Q. So there's no way you could know whether
23 that specific machine left your father-in-law's
24 company in the Netherlands and was sold to
25 National Equipment in the United States?

255
2 A. When it's in the states and it was our
3 machine.
4 It was not our machine. The machine of
5 my father-in-law's company, then it should be sold
6 by the National Equipment.
7 Q. But what I'm asking you is that you have
8 no record, proof of -- you can't say for sure
9 whether this specific machine left the Netherlands
10 and was sold to National Equipment in the United
11 States?
12 A. I can say that this specific machine was
13 sold by Tonnaer Company, and when it is in the
14 United States it would be sold by the National
16 Sorry, we call them the NEC. It wasn't a
17 lot of possibility.
18 Q. What if I told you that this machine was
19 purchased at an auction?
20 A. It could be.
21 Q. And explain that?
22 How could it be?
23 A. Because National Equipment imported those
24 machines. Perhaps they had it by trade-in. I
25 don't know. But all the machines went through

256
2 National Equipment.
3 Q. Now, by the way, your company in Holland
4 and your father-in-law's company, they're not the
5 only companies that manufacture dough mixing
6 machines in the world, are they?
7 A. No, of course not.
8 Q. How many others would you say there are?
9 A. I know two of them in the United States.
10 Q. How many in Europe?
11 A. In fact, at the moment I think we're the
12 only one.
13 Q. And when you say you also manufacture
14 kneading machines, what is that?
15 A. This is a kneading machine.
16 Q. Is it the same thing as a dough mixer?
17 A. Yes. Yep. It's a dough kneader.
18 When it's heavy material, we call it
19 kneading.
20 Q. And is it fair to say that you have no
21 knowledge of where this machine went after it
22 first arrived in the United States?
23 A. My father-in-law doesn't know that
24 either.
25 Q. Your father-in-law?
257
2 A. When you import machines, you don't ask
3 where it's going.
4 Q. Okay, was your answer no?
5 A. They order a machine --
6 Q. You don't have knowledge where it went?
7 Whether it was sold to a company called Ferrara
8 Foods or somewhere else?
9 A. I couldn't know.
10 Q. Now, do you have any knowledge whether
11 the machine was sold by your father-in-law's
12 company new or used?
13 A. Always new. They didn't have used
14 machines in those days. Our machines from those
15 days they were new. They didn't -- they may only
16 make new machines.
17 Now we have also used reconditioned
18 machines but not in those days.
19 Q. And once the machine was in the United
20 States, you have no knowledge of whether any
21 feature that the machine -- safety features were
22 removed?
23 A. How could I know that?
24 Q. All you have to do is answer the
25 questions.
258
2 A. No.
3 Q. I'm not trying to be, you know,
4 antagonistic with you?
5 A. This machine has not safety devices.
6 Q. But that's not my question.
7 When you say that machine has no safety
8 devices, you've never examined that exact machine,
9 right?
10 A. Those machines in those days between the
11 '55 and '59 did not have safety devices.
12 Q. But back then --
13 A. You can't remove them.
14 Q. -- back then that was the standard in the
15 -- the industry?
16 That's how they were normally made,
17 right?
18 A. I think not here. But in our country,
19 yes.
20 Q. And you don't know what changes, if any,
21 this machine underwent once it got to the United
22 States, do you?
23 Whether safety features were put on or
24 safety features were taken off?
25 You have no knowledge of where this

259
2 machine went once it got to the United States?
3 A. We know that it got to the United States
4 by the NEC, National Equipment Corporation.
5 Q. But that's not my question. Do you know
6 where it went thereafter?
7 A. If you export machines, you don't know
8 the customers.
9 Q. Do you know whether any changes were made
10 to it?
11 A. I don't know. After the machine goes
12 from our place what some people do with it.
13 Q. Do you know if a safety grate that was
14 once on the that machine was ever removed?
15 A. Whether it was removed?
16 Q. Do you know?
17 A. It was on the machine. I saw pictures
18 with the safety grate.
19 Q. Do you know if it was ever removed before
20 the accident?
21 A. How could I know that?
22 Q. Do you know the time period during which
23 the photographs you've been shown since 1998 were
24 taken?
25 A. Yes. Nine. Sorry, what do you ask?

260
2 Q. When -- do you know the time when the
3 photographs you've been shown since 1998 of this
4 machine were taken?
5 A. Since what and then between?
6 Q. Any photographs you've seen since 1998
7 that were mailed to you over in Holland or this
8 one here?
9 A. We just saw the pictures of the machine
10 in 1999.
11 Not '98. '99.
12 Q. Do you know when the photographs were
13 taken?
14 A. I assume in 1999.
15 Q. I'm not asking you to assume.
16 Do you know when they were taken?
17 THE COURT: All right. That's
18 sustained.
19 All right, Miss Cottes, please.
20 All right.
21 Q. Do you know if the pictures were taken
22 before or after Mr. Rodriguez's accident?
23 THE COURT: Were you there when the
24 photographs was taken, Miss Tonnaer?
25 THE WITNESS: No. Of course not.

261
2 THE COURT: All right. Next question.
3 Q. Now when you talk about 1998, was that the
4 first contact you had with Mr. Durst during in his
5 office?
6 A. Yes, in 1999.
7 THE COURT: When was that?
8 A. She's talking about 1998, but it was nine.
9 I'm sorry.
10 THE COURT: I'm going to ask you a
11 speak up a little louder, okay.
12 Miss Scotto, did you hear?
13 MS. SCOTTO: I did. Thank you.
14 Q. Now, this has been going on for a long
15 time, don't you agree?
16 A. Um hum.
17 Q. Aren't you glade it's going to come to an
18 end for you?
19 MR. DURST: Objection, Your Honor.
20 A. Why? No.
21 Q. Isn't it a fact that Mr. Durst sued your
22 company?
23 A. Yes. At first, yes.
24 Q. And that was in 1998?
25 A. Nine. I think it was nine. When we

262
2 received testimony I think it was nine.
3 THE COURT: '99, is that what you're
4 saying Miss Tonnaer?
6 A. When I received it you, you have to know.
7 MS. COTTES: May I have this marked as
8 Defendant's 1?
9 (Whereupon, the item referred to is
10 marked Defendant 1, National Equipment
11 Corportion, for identification.)
12 THE COURT OFFICER: So marked.
13 MR. DURST: I've seen it.
14 MS. COTTES: Thank you.
15 THE COURT OFFICER: Defendant's 1, for
16 identification so marked.
17 Q. Miss Tonnaer, we're showing you what has
18 been marked Defendant's 1, for identification.
19 Do you recognize that?
20 A. Um hum. I think, yes.
21 Q. And what is that?
22 THE COURT: Is that for the purposes
23 of refreshing her recollection?
24 A. You call it? What is it?
25 THE COURT: If you don't know what it

263
2 is?
3 THE WITNESS: I don't know the words.
4 THE COURT: Are you referring her to a
5 particular area on that?
6 Q. I refer you to one of the last pages that
7 gives you a date of that document?
8 A. Okay.
9 Q. And does that refresh your recollection
10 as to when Mr. Durst sued your company regarding
11 this accident?
12 A. I see it's June 1988. And June 1998.
13 Okay, you're right.
14 Q. Okay, so this has been going on for you,
15 you've been contacted intermittently about this
16 accident for approximately six years, is that
17 right?
18 A. No.
19 Q. Tell me when you were first contacted
20 after receiving that document?
21 A. When I received the document later on.
22 THE COURT: Excuse me. Is your
23 question did she receive that document?
24 Q. Well, did you receive that document?
25 A. Yes.
264
2 Q. And when were you first contacted by Mr.
3 Durst or anyone on his behalf after receiving it?
4 A. That was in 1999. Because we didn't know
5 what it was, we contacted several people what to
6 do with it.
7 I'm not familiar with anything of this.
8 This -- that's completely strange for me. So I'm
9 not a judge, I'm not an American. What is it? I
10 had to look it up in the dictionary before I knew
11 what it was.
12 So what did I do, we discussed it. My
13 husband, brother-in-law and I discussed what to do
14 with it. Then we spoke about it and my husband
15 said why don't we send a fax to National Equipment
16 Corporation, ask Mr. Arthur Greenberg, he knew
17 them from the introducing at the fair, what to do
18 with it because we thought -- we don't know the
19 legal system here -- we saw they were mentioned in
20 this thing.
21 Q. That's because National Equipment was
22 also sued back then, right?
23 A. Yes, but we don't understand all those
24 things. It's legal talk and also American legal
25 talk.
265
2 Q. And ultimately you hired lawyers over in
3 Holland to defend you, right?
4 A. I hired. At the moment we had a lawyer
5 but he didn't know what to do else. He said you
6 have to hire perhaps a lawyer in America.
7 Q. Okay, well, let me ask you this Miss
8 Peters you then --
9 A. Tonnaer. Please, Tonnaer.
10 Q. You like Tonnaer better? Okay.
11 A. That's my name.
12 Q. You then began writing to Mr. Durst.
13 Didn't you -- didn't you write him a few
14 letters throughout?
15 A. Yes. Yes.
16 Q. And you asked him to discontinue this
17 suit against you, right?
18 A. Yes.
19 Q. And that was important to you that this
20 just be over with, right?
21 A. Of course.
22 Q. Now, before we get to what you wrote to
23 Mr. Durst, let me ask you. Your father-in-law,
24 obviously, is your husband's Mr. Tonnaer's father?
25 A. Yes.
266
2 Q. Okay. And is there a reason your husband
3 didn't come to New York?
4 A. His English is not as my English.
5 Q. Okay, but would you agree that he knows a
6 lot more about your company and your
7 father-in-law's company than you do?
8 A. No, I don't think so, not any more.
9 Q. You know about -- does he know more about
10 his father's company?
11 A. Excuse me?
12 Q. Does he know more about his father's
13 company?
14 A. We talked a very lot about this case. We
15 talked a very lot. I think at the moment I know
16 the same thing as he does.
17 Q. So is it fair to say that your testimony
18 today is based on several things, right?
19 A. What things?
20 Q. Okay, and is your testimony based upon
21 conversations with your husband?
22 A. Amongst others.
23 Q. Conversations with your father-in-law
24 between 1981 and 1991?
25 A. Yes and things I discovered myself, not

267
2 only discussions. I saw things myself.
3 Q. And Arthur Greenberg you met him once at
4 a fair?
5 A. I was not introduced. My husband and my
6 brother-in-law were introduced. I was just new
7 common girlfriend, so they didn't introduce me in
8 those days but I was there.
9 Q. Okay, prior to meeting him you had no
10 knowledge of the dough mixing machine businesses
11 or anything of that sort, right?
12 A. Not a lot.
13 Q. Now, did your father-in-law ever see
14 pictures of this machine?
15 A. He made those. He designed those
16 pictures -- those machines.
17 THE COURT: Your father-in-law see
18 pictures, is that your question?
19 A. He was dead already. He -- you just
20 mentioned he was dead in 1991.
21 Q. Okay, so he never saw this machine,
22 right?
23 A. No. Of course not.
24 Q. Did you ever have a conversation with him
25 about this particular machine?

268
2 A. Of course not.
3 Q. And are you aware that the accident that
4 we're here to talk about today happened in 1995?
5 A. I just saw that on the internet. I looked
6 up the case at the internet. So I saw it from
7 1995. Yes that's the truth.
8 Q. Okay and other than meeting Mr. Greenberg
9 at the fair --
10 A. Yes.
11 Q. --and that was one time?
12 A. Yes.
13 Q. What year was that?
14 A. You want to know a lot.
15 It was in the years I was learning and I
16 think it could be '98 -- '89. Yes, '89. Sorry
17 that's my English.
18 Q. Okay. Do you know when this machine was
19 allegedly sold by Machine Fabriek Tonnaer?
20 A. This machine?
21 Q. This particular machine?
22 A. Between '55 and '59.
23 Q. It would have been sold between '55 and
24 '59?
25 A. I think so yes because this kind of

269
2 machine was manufactured between those years.
3 Q. So would it surprise you to learn that
4 the VP of Ferrara Foods who had this exact -- this
5 particular dough mixing machine --
6 A. Yes?
7 Q. --will testify that it was purchased in
8 1978?
9 A. It could be.
10 Q. Okay. And do you have any other knowledge
11 other than with respect to when it was
12 manufactured other than that time period '55 to
13 '58?
14 A. No.
15 Q. Could it have been manufactured earlier
16 or later?
17 A. I don't think so.
18 Q. Why don't you think so?
19 A. Because that's what we discussed with my
20 husband and my brother-in-law and the brochure we
21 have of those machines.
22 Q. And was there any way the three of you
23 could sit down and figure out which particular
24 machine this one was?
25 A. Yes, this is a Zet Blade Mixer.

270
2 THE COURT: I'm sorry?
3 THE WITNESS: A --
4 THE COURT: It's a what?
5 A. Zet Blade Mixer. The "Z" again.
6 Q. Not the type of machine. The exact
7 machine?
8 A. No, because there's no date of
9 manufacture.
10 Q. Now, earlier in this case approximately
11 four years ago in 2001 did -- do you remember
12 signing an affidavit for Mr. Durst's office?
13 A. Yes.
14 Q. And you signed this -- you signed that in
15 the presence of a notary?
16 A. Yes. Yeah. Yeah.
17 Q. And did you write that affidavit or did
18 Mr. Durst?
19 A. Sorry?
20 Q. Who wrote that affidavit?
21 A. I told him what I wanted to say and he
22 translated it. I can't write those things.
23 Q. Okay. And was that to assist him with his
24 case?
25 A. For the assistance of the case --

271
2 THE COURT: Did you know why he asked
3 you for that?
4 A. Yes, of course.
5 THE COURT: Okay.
6 Q. And why was that?
7 A. Why was that? Because he thinks he wants
8 to know how things went in those days and he said
9 we were of -- my father-in-law was the
10 manufacturer, do you know what happened after
11 this? How did things go?
12 Okay, I did. So I -- I -- uh, I didn't --
13 I think I did a good thing to agree.
14 Q. Did you ever investigate who Machine
15 Fabriek Tonnaer sold this machine to in the United
16 States?
17 A. We can't. Of course, not.
18 THE COURT: We've gone through this.
19 Next question.
20 Q. And did Mr. Durst every tell you that
21 helping him with the affidavit earlier and coming
22 here today --
23 A. Yeah?
24 Q. -- would keep him from ever contacting
25 you again, that you would be done with this?

272
2 A. We already done with this four years
3 because the company he sued was bankrupt. The
4 Judge agreed with it. Judge Salman in those days.
5 That's gone for years. There's no problem any
6 more. For years any more.
7 Q. And when was the last time by telephone
8 prior to last night that you were contacted by Mr.
9 Durst?
10 A. I think last week.
11 Q. And is it fair to say that he went over
12 what you would be testifying to today?
13 A. No, he told me we talked about the date.
14 I would come here. If I would come here.
15 Q. Now, you acknowledged earlier that you
16 did write to Mr. Durst's firm through the years,
17 is that right?
18 A. Again, please?
19 Q. You wrote letters to Mr. Durst?
20 A. Yes.
21 Q. Since you were initially sued in 1998, is
22 that right?
23 A. Yes.
24 Q. And in those letters you talked about the
25 machine that was allegedly involved in the

273
2 accident?
3 A. Yes.
4 Q. And the accident, right?
5 A. Uh, I don't remember that. But if you say
6 so it will be so.
7 THE COURT OFFICER: A, B, C,
8 defendant's National Equipment
9 corporation. I'm showing it to counsel.
10 MR. DURST: Thank you.
11 (Whereupon, there is a pause in the
12 proceedings.)
13 Q. Miss Tonnaer, before I get to the document
14 that's in front of you --
15 A. Yes.
16 Q. -- the lawsuit that you talked about when
17 you were sued, that's about the same accident
18 you're here to testify about today, right?
19 A. Yes.
20 Q. And do you recall writing to Mr. Durst
21 the in 1997?
22 A. Oh, yes before I got sued.
23 Q. Okay.
24 THE COURT: All right, is that a yes
25 or no?
274
2 THE WITNESS: Yes.
4 Q. Could you tell me why you would be writing
5 to Mr. Durst before you got sued?
6 A. I think it was that, uhm, let me see.
7 It's a long time ago.
8 Q. Take your time.
9 A. Yes.
10 Q. You can review the document. Take your
11 time.
12 A. You have to help me.
13 THE COURT: Miss Tonnaer.
14 A. Sorry.
15 THE COURT: All right. Just read the
16 document. If you do not understand
17 something say so.
18 A. Yes, I don't understand.
19 THE COURT: Just read the document.
20 That's not in evidence, okay. Just read it
21 to yourself.
22 All right, tell you what, ladies and
23 gentlemen, let's give you a quick -- some
24 of you may need to have a little recess.
25 We'll give you a quick five minutes and

275
1 PROCEEDINGS
2 we'll be right back.
3 So everybody please do not discuss the
4 case amongst yourselves, with anyone else.
5 Do not allow anyone to discuss it with
6 you, or in your presence. Please do not
7 talk with any attorneys, parties or
8 witnesses. Please, quick five minutes.
9 THE COURT OFFICER: Jury, please, all
10 rise.
12 courtroom.)
16 the sworn jury.)
17 THE COURT: Miss Tonnaer, sit over
18 here opposite the Court reporter, all
19 right.
20 Where is the document that you were
21 handed?
22 MS. SCOTTO: The officer took them,
23 Your Honor.
24 THE COURT: Louis we need that document
25 in here.
276
1 PROCEEDINGS
2 THE COURT OFFICER: Yes, Judge.
3 THE COURT: Bring all of them in here
4 just in case she doesn't understand
5 something.
6 (All parties are present in the robing
7 room.)
8 THE COURT: All right, Defendant's B,
9 apparently, is a letter sent to Mr. Durst
10 from Miss Tonnaer. That's November 10th
11 of 1997.
12 Is that the date on this even though
13 it says 10/11/97. Americans would
14 understand that to be October 11th, but,
15 in fact, that's November 11th.
16 THE WITNESS: November, yes.
17 THE COURT: Okay. All right. Now, let
18 me ask you Miss Tonnaer because you say
19 you didn't understand something. Is that
20 when you're reading the letter because of
21 the English?
23 THE COURT: So let me ask you, are
24 you having difficulty understanding
25 reading English, is that what you're

277
1 PROCEEDINGS
2 saying?
3 THE WITNESS: No, some words.
4 "Summons", what does it mean again?
5 In those days I looked it up I knew
6 but sometime --
7 THE COURT: All right, you're having
8 difficulty understanding legal terms, is
9 that what you're saying?
10 THE WITNESS: Only legal terms, yes.
11 THE COURT: All right, but otherwise
12 you can understand what's written in the
13 letter?
16 is all counsel, the Court and Miss Tonnaer
17 and I'm trying to as much as possible save
18 anytime inside. It's already -- I don't
19 know if we're going to get to your expert.
20 Miss COTTES, I'm going to ask you to
21 look at the other two items that are in
22 evidence. Are you going to ask her with
23 regard to those -- let's see if there are
24 any words there that maybe she does not
25 understand.
278
1 PROCEEDINGS
2 MS. COTTES: Okay, I have my copy if
3 you want to hold on to them.
4 THE COURT: Miss Tonnaer, we don't
5 have an interpreter here. Had I had any
6 notion that you might of needed an
7 interpreter perhaps it would have been
8 better for us to utilize the services of
9 an interpreter. But at this point I'm
10 going to ask you what's been marked
11 Defendant's C and D. Read it to yourself
12 first and let us know if there are any
13 English words there that you don't
14 understand, all right?
15 THE WITNESS: Um hum.
17 proceedings.)
18 Yes, yes. I understand this one.
19 THE COURT: And that was C. You had
20 no difficulty understanding the language
21 that's contained there?
22 THE WITNESS: No.
25 proceedings.)
279
1 PROCEEDINGS
2 THE WITNESS: I understand.
3 THE COURT: All right so the only
4 words that you have difficulty
5 understanding --
6 THE WITNESS: Um summons.
7 THE COURT: -- in the English language
8 as written are legal terms; is that what
9 you're saying?
11 THE COURT: But otherwise you had no
12 difficulty understanding --
13 THE WITNESS: No.
14 THE COURT: -- the English language in
15 Defendant's C and D, which has been marked
16 for identification?
17 THE WITNESS: No.
18 THE COURT: Having just reviewed all
19 of those three documents B, C and D
20 the --
22 THE COURT: --the only difficulty was
23 with legal terms?
25 THE COURT: So there shouldn't be any

280
1 PROCEEDINGS
2 more difficulty with regard to your
3 testifying with regard to those other
4 items, correct?
5 THE WITNESS: No. Yes, that's correct.
6 THE COURT: While we're still in
7 here, are there going to be any other
8 letters that have any legal terminology in
9 them, Miss Cottes?
10 MS. COTTES: No, that should be it that
11 I need to mark.
12 THE COURT: Okay. All right.
16 THE COURT: Miss Tonnaer, would you
17 resume the witness box, please?
18 THE COURT: All right, let's bring the
19 jurors out.
20 All right, do we have the exhibits.
21 THE COURT CLERK: They're in the jury
22 box.
23 MS. COTTES: I think the witness has
24 all three.
25 THE COURT: You have them there?

281
2 THE WITNESS: Yes.
4 rise.
7 seats.)
8 THE COURT: All right, ladies and
9 gentlemen. Have a seat.
10 All right.
13 BY MS. COTTES:
14 Q. Miss Tonnaer, you're looking at
15 Defendant's B?
16 A. Yes.
17 Q. Okay, and is that a letter date November
18 10th, 1997?
19 A. Yes.
20 Q. And do you recognize that letter?
21 A. Yes.
22 Q. Is that a letter you wrote and signed?
23 A. Yes.
24 Q. And who did you write that letter to?
25 A. Mr. John Durst.

282
2 Q. Okay, and that was after you received the
3 summons and complaint in the lawsuit against you,
4 right?
5 A. Yes.
6 Q. Does this letter refresh your
7 recollection that you actually received the suit
8 in 1997 as oppose to 1998?
9 A. Uhm, I don't know the exact time any
10 more.
11 THE COURT: I'm sorry you have --
12 what did you say?
13 A. I don't know the exact time any more.
14 THE COURT: The exact time or the
15 exact --
16 A. --from receiving.
17 THE COURT: The exact time or you mean
18 exact year?
19 A. Exact time and year. I think it was the
20 end of '79 -- '97, I'm sorry. Or the beginning of
21 '98. I can't remember.
22 Q. I'm just looking at the first paragraph
23 of your letter. You wrote this write?
24 A. Yes.
25 Q. You wrote this yourself?

283
2 A. Sorry.
3 Q. You wrote this yourself?
4 A. I wrote that myself.
5 Q. And that's your signature at the bottom?
6 A. Yes.
7 Q. Referring your attention to the first
8 paragraph.
9 Does that refresh your recollection --
10 A. Yes.
11 Q. -- that you received the suit in 1997?
12 A. I, uhm, it was like that. I can't
13 remember that when it says that it will be so.
14 Q. Okay, and in this letter don't you tell
15 Mr. Durst that you were confused upon receiving
16 the summons and complaint?
17 A. That I was confused? No, I meant that he
18 should be confused.
19 Q. Okay, and what do you mean by that?
20 A. Because they sued Tonnaer Machinist NV,
21 which never existed. And Tonnaer Machines BV never
22 did business with the New York Equipment
23 Corporation -- National Equipment Corporation in
24 New York.
25 Q. Okay, now your company is Tonnaer Machine

284
2 BV, right?
3 A. Yes. Yes.
4 Q. In the paragraph after where you tell Mr.
5 Durst that he should be confused, isn't it true
6 that you actually tell him that you believe that
7 the accident concerned a company by the name of J.
8 Tonnaer Machine Constructies?
9 A. At that time when we wrote this, we
10 thought it could be J. Tonnaer Machine
11 Constructies.
12 Q. And that was another company?
13 A. Another company, right. Yes.
14 Q. Not related to your company, right?
15 A. No.
16 Q. And not related to Machine Fabriek
17 Tonnaer?
18 A. That one doesn't exist any more. I think
19 it was only a few years.
20 Q. Okay, but it was not related to your
21 company, right?
22 A. No, not our company.
23 Q. It was not related to Machine Fabriek
24 Tonnaer?
25 A. Related? I don't know who was the legal

285
2 owner of that.
3 Q. Okay, well, do you know -- you know your
4 father-in-law's company Machine Fabriek Tonnaer
5 that's what you told us today, right?
6 A. Yes, the main company was Machine Fabriek
7 Tonnaer NV, yes. Large companies like that have
8 more side companies for their buildings and things
9 like that.
10 Q. Sitting here today, do you know if there
11 was, in fact, there was any relationship at all
12 between Machine Fabriek Tonnaer and J. Tonnaer
13 Machine Constructies which you say in this letter
14 expired in 1983?
15 A. This J. Tonnaer Machine Constructies,
16 it's a different isn't it?
17 Would you like to see? Was an unrelated
18 company. Yes, to us. To us, yes.
19 THE COURT: I'm sorry, just one
20 second.
22 THE COURT: When you say to us?
23 THE WITNESS: Mean Tonnaer Machinist BV
24 the --
25 THE COURT: The company that you are

286
2 now involved with?
3 THE WITNESS: Yes.
4 Q. It was Machine Constructies that you're
5 telling Mr. Durst that the accident concerned
6 Machine Constructies was a company that went under
7 in 1983 according to your letter, isn't that
8 right?
9 A. That was -- yes. Yes. Yes. That's true.
10 Q. And your father-in-law's company you've
11 told us today, and more than once, went out of
12 business in 1974?
13 A. That's correct. And this --
14 Q. Now I draw your attention to the very end
15 of this letter, Miss Tonnaer.
16 You're asking Mr. Durst, we insist that
17 you withdraw your complaint?
18 THE COURT: Counsel that is not in
19 evidence, so if you're quoting from this
20 please don't.
21 Q. Let me ask you this Miss Tonnaer.
22 When you wrote this letter was it an
23 accurate letter?
24 Was it something that you reviewed?
25 A. Which I reviewed.
287
2 Q. Did you look it over before you signed
3 it?
4 A. Uh, yes.
5 Q. Okay. And was it -- were the contents of
6 it accurate?
7 A. Yes, I found so, yes.
8 In those times after this letter we
9 started more -- to get more information.
10 Q. Okay, we'll get to that?
11 A. Okay.
12 Q. But this letter, when you wrote this
13 letter, you wrote it on your letter head Tonnaer
14 Machine BV, right?
15 A. Yes. Yes. Yes.
16 Q. And this is the type of letter that would
17 be kept in the normal course of your business?
18 A. Yes.
19 MS. COTTES: Judge, I'm going to ask
20 that this be moved into evidence.
21 MR. DURST: Objection, Your Honor.
22 THE COURT: Excuse me.
24 THE COURT: Side-bar.

288
1 PROCEEDINGS
4 plaintiff and sworn jurors.)
5 THE COURT: Okay, Mr. Durst.
6 MR. DURST: My objection is that it's
7 not a business document. Wasn't prepared
8 in the regular course of business. It was
9 only prepared for litigation purposes.
10 Secondly, in prior inconsistent
11 statements I would acknowledge will -- any
12 prior inconsistent statements would be
13 admissible but I don't know of any --
14 THE COURT: Sorry, say that again.
15 MR. DURST: Any prior inconsistent
16 statements in there would be admissible
17 but that's all --
18 THE COURT: Okay. I'm not sure I
19 understood that, but did you understand
20 that Miss Cottes?
21 MS. COTTES: I think so. I think I
22 know what he's saying but I think he's
23 wrong.
24 THE COURT: What?
25 MS. COTTES: May I make a record?

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1 PROCEEDINGS
2 THE COURT: Yes.
3 MS. COTTES: I'd ask the witness
4 foundation questions with respect to this
5 document. Was she the author of it, did
6 she write it herself, does it concern the
7 accident that she's here about today?
8 THE COURT: Keep in mind, Miss Cottes
9 there -- assume for the business this is
10 a business record. Let's move beyond that.
11 Mr. Durst is objecting because he
12 qualifies this as documents prepared in
13 advance of litigation. So, let's address
14 that issue.
15 MS. COTTES: But the witness has
16 testified that it's prepared in the normal
17 course of her business.
18 THE COURT: I understand that. You've
19 indicated that as a business record it
20 should come in.
21 MS. COTTES: And he --
22 THE COURT: I'm now asking with regard
23 to his document, as a document prepared
24 for litigation.
25 MS. COTTES: I don't see how it's

290
1 PROCEEDINGS
2 prepared for litigation she's having it --
3 THE COURT: To the extent that it
4 seems to indicate acknowledge the receipt
5 of your summons.
6 MS. SCOTTO: Your Honor, may I also
7 add it may be in preparation if counsel's
8 claim, although I don't agree preparation
9 for litigation. It's not this litigation,
10 it's another lawsuit under another index
11 number so does that mean --
12 THE COURT: Right, that's true.
13 MS. SCOTTO: My time --
14 THE COURT: Not to the extent that
15 the summons that I understand is the basis
16 of this particular correspondence named
17 NEC Corporation, as well.
18 MS. COTTES: This is also. And this is
19 what --
20 THE COURT: Miss Cottes, the document
21 that she's referring to that summons which
22 you had showed her as Defendant's A, for
23 identification, did that not indicate the
24 name of her corporation or a Tonnaer
25 Corporation?
291
1 PROCEEDINGS
2 I don't know right now which one --
3 MS. SCOTTO: Two (sic).
4 MS. COTTES: Her company.
5 THE COURT: But it also included in
6 that caption your company?
7 MS. COTTES: Yes.
8 THE COURT: Named as a defendant?
9 MS. COTTES: Yes.
10 THE COURT: So --
11 MS. SCOTTO: But that one as I
12 understand it was never served on her
13 client because her client is a defendant
14 in this lawsuit.
15 MS. COTTES: Right.
16 MS. SCOTTO: That lawsuit was
17 dismissed.
18 MS. COTTES: A separate suit based upon
19 the same accident.
20 THE COURT: Okay, tell you what, I'm
21 not going to allow this to be admitted at
22 this time, okay. We need to take up this
23 issue in a little bit, all right. I'm not
24 allowing it to be admitted at this time,
25 if at all, okay.
292
1 PROCEEDINGS
2 MS. COTTES: Can I just point out --
3 THE COURT: But we can't publish and
4 there's no quoting from this document at
5 this point, all right. If it's admitted
6 into evidence then, obviously, they could
7 just see it, correct?
8 MS. COTTES: But what Mr. Durst was
9 acknowledging was that this document does
10 contain a prior inconsistent statement
11 which is he said admissible because in
12 this she's saying I assume that it, the
13 suit, concerns this other company and
14 she's testified today that the suit
15 concerns her father-in-law's company.
16 THE COURT: Reading that letter, I'm
17 not quit sure what she understood when
18 that was written.
19 MS. COTTES: She just testified to it.
20 MS. SCOTTO: That was my understanding
21 of her testimony, as well. Her testimony
22 originally on the plaintiff's direct case
23 was that the manufacturer was her
24 father-in-law's company Machine Fabriek
25 Tonnaer.
293
1 PROCEEDINGS
2 After looking at this document she has
3 inconsistent statement. She gives the
4 name of another company. So that was
5 inconsistent statement at a minimum that
6 should be admitted. Maybe, maybe the
7 document has to be redacted, that portion
8 to be written.
9 THE COURT: Again, if you want to
10 flush this out a little bit with regard to
11 Machine Constructies, but I don't believe
12 I've heard any inconsistencies thus far,
13 but I'll let you question that.
14 I think she was talking about Machine
15 Constructies and I'm not sure what she
16 said about it, but she did not say that it
17 was part of her father-in-law's company or
18 if she did, she was saying it's out here
19 someplace. I don't know what she meant
20 when she said out here.
21 MS. SCOTTO: Which is the
22 inconsistency.
23 THE COURT: I thought she was saying it
24 was a subsidiary. I don't know because I
25 can't understand what she meant that it

294
2 was out here, that is why I'm not quite
3 clear on this being inconsistent.
4 MS. COTTES: Do you want me to further
5 inquire and seek to admit it again?
6 THE COURT: Let's see where she goes
7 with that?
8 MR. DURST: To the extent she's already
9 been questioned about it.
10 THE COURT: Mr. Durst, please. All
11 right. We're having a difficult time
12 understanding her, all right. But I am
13 going to suggest that we try to move
14 because it's ten to four. Miss Scotto
15 hasn't had a chance to inquire. All right.
18 BY MS. COTTES: (CONT'D).
19 Q. Miss Tonnaer, I ask you to look at the
20 same document Defendant's B and draw your
21 attention to the same paragraph we just talked
22 about.
23 In that paragraph, you're telling Mr.
24 Durst that the accident concerns a company
25 called --
295
2 THE COURT: There's no quoting from it
3 at this point.
4 Ask with regard to that particular
5 company, all right.
6 Q. Isn't it true that you wrote to Mr. Durst
7 that the company involved in the accident appeared
8 to be J. Tonnaer Machine Constructies?
9 A. I said we assume that it concerns J.
10 Tonnaer Machine Constructies.
11 Q. Okay, and isn't that a fact that that is
12 a company not related or a different company from
13 Machine Fabriek Tonnaer?
14 A. That's a different company from Machine
15 Fabriek Tonnaer.
16 Q. In fact, your letter says that machine --
17 I'm sorry. The letter says J. Tonnaer Machine
18 Constructies went bankrupt in 1983, right?
19 A. Yes.
20 Q. And Machine Fabriek Tonnaer your father's
21 company went bankrupt in almost ten years earlier
22 in -- your father-in-law's company went bankrupt
23 ten years earlier in 1974?
25 Q. So is it fair to say that what you told

296
2 Mr. Durst at the time you wrote this letter is
3 different than what you've said in the courtroom
4 today?
5 A. Yes, because what I knew.
6 Q. You need not explain. I'm going to draw
7 your attention to Exhibit C, Defendant's C.
8 Now is that a letter dated November 23rd,
9 1998?
10 A. Yes.
11 Q. Okay, is that a letter written by you?
12 A. Yes.
13 Q. And you signed that letter?
14 A. Yes, that's my --
15 Q. And who is it a letter to?
16 A. The Durst law firm.
17 Q. Okay, and in that letter you're asking --
18 strike that.
19 What was the purpose of your writing this
20 letter?
21 A. What was the purpose? I tried to explain
22 that the people he was talking to was a different,
23 completely different company than he thought they
24 would be.
25 That's the purpose of -- I tried to

297
2 explain that he thought we were the manufacturers
3 of the machine and I tried to explain to him that
4 we existed from 1982, so we are not the
5 manufacturers of the machine.
6 It's very complex but I tried to explain
7 that's the purpose of the letter.
8 Q. In fact, you're telling him --
10 Again that letter, you're explaining
11 that you're company, that being your
12 husband and you and your brother-in-law's
13 company --
15 THE COURT: -- is in existence since
16 199 -- 1983?
17 THE WITNESS: 2.
18 THE COURT: And you were not the
19 manufacturers of a given machine.
21 Q. Okay, and again this letter was a letter
22 written by you in response to the lawsuit
23 concerning this accident, right?
24 A. Yes. After the summons, I served the
25 summons, then I wrote this letter and after that

298
2 we wrote this letter, yes.
3 Q. And is it a letter you wrote in the
4 normal course of your business?
5 A. In the normal course of your business.
6 How?
7 Q. Is it a letter, you know, written on
8 behalf of your company?
9 A. Yes.
10 Q. Okay, and a record that you keep?
11 A. Yes.
12 Q. Now, I draw your attention to paragraph
13 two of the letter?
14 A. Yes.
15 Q. Okay. Isn't it true that you're -- you
16 told Mr. Durst at that time that you're company
17 was the company with different founders and
18 managers than a company Mr. Durst called Tonnaer
19 Thorn-Holland?
20 A. Yes.
21 Q. Where did you see Tonnaer Thorn-Holland?
22 A. On the machine.
23 Q. Okay, and where did you see it?
24 Did you see it on any documents other
25 than that?
299
2 A. On the pictures he sent to me.
3 Q. Okay, how did he send them to you?
4 A. Fax.
5 There's a large plate. You can see it
6 very clearly.
7 Q. Okay, and do you recall how far or how
8 I'm -- strike that.
9 How long prior to November 23rd, 1998,
10 you received facsimile, pictures, photographs from
11 Mr. Durst or someone from his firm?
12 A. I think just before -- just before the
13 first letter, Exhibit B.
14 Q. Just before November 23rd, 1998 or
15 before?
16 A. Of course.
17 Q. In the earlier letter?
18 A. Sorry?
19 Q. Before the earlier letter or?
20 A. Yes.
21 Q. Or before?
22 A. Yes.
23 Q. Okay, so before the letter of November
24 10, 1997, is that right?
25 A. Um uhm. Um uhm.
300
2 THE COURT: Is that a yes?
3 A. Yes. Sorry.
4 Q. And in your letter of November 23rd, 1998,
5 isn't it true that you told Mr. Durst that neither
6 you nor any of the other managers at your company
7 were even born at the time the machine was
8 manufactured?
9 A. Yes, that's clear.
10 Q. And on the very next page you also
11 mentioned that from your review of the photographs
12 sent to you it's a very old machine which was
13 manufactured beyond your responsibilities, isn't
14 that true?
15 A. Yes. Yes.
16 Q. And again at the end you're asking --
17 asked Mr. Durst to discontinue his lawsuit, isn't
18 that right?
19 A. Yes. Yes.
20 Q. I'm going to draw your attention to
21 exhibit D of Defendant's.
22 A. Yes.
23 Q. That's also a letter written by you?
24 A. Also. Also yes.
25 Q. Yes. And what is the date of that letter?

301
2 A. May 11th, 1999.
3 Q. And who was that letter written to?
4 A. Mr. Durst's law firm.
5 Q. And does that concern the accident that
6 you're here to talk about today?
7 A. Yes.
8 Q. Okay and it was written after you were
9 sued, obviously, in 1997?
10 A. Yes.
11 MS. COTTES: Your Honor, I just want
12 to stop there.
13 Just for the record, I would seek to
14 move Defendant's C, into evidence. Second
15 letter.
16 THE COURT: Which one is this "C"?
17 MS. COTTES: This one's "D" that she's
18 looking at. But "C's" the letter of
19 November 23rd, 1998. I would seek to move
20 that into evidence.
22 MR. DURST: Just the same objection,
23 Your Honor.
24 THE COURT: All right. Would you
25 approach first?
302
2 (Whereupon, there is a discussion held
3 at side bar, off the record.)
4 THE COURT: All right, that objection
5 is overruled.
6 All right ladies and gentlemen of the
7 jury, we are not going to allow you to
8 have this until -- this is marked up, so
9 we will provide you with a document that
10 is not marked. All right.
11 All right, that's "C" in evidence.
13 previously Defendant's Exhibit C was
15 THE COURT OFFICER: Defendant's C, in
16 evidence so marked.
17 MS. COTTES: Judge, for the record,
18 Your Honor, your reserved ruling on
19 admissibility of Defendant's B, the first
20 letter.
21 THE COURT: Yes, I will.
24 Q. Now, Miss Tonnaer, before we get to the
25 1999 letter, I'm going to draw your attention to

303
2 Exhibit C again which is the letter of November
3 23rd, 1998.
4 A. Yes.
5 Q. Could you read the last paragraph on the
6 first page, and the first paragraph on the second
7 page?
8 A. If you do an exhaustive search, you will
9 find out that the present founder managers were
10 not even born at the time the proposed machine was
11 manufactured.
12 You will understand that a simple Tonnaer
13 Thorn-Holland is not a closely reasoned argument
14 for liability in this matter.
15 We suggest you do some research in this
16 matter and consider which ways you took to obtain
17 your information, and you will find out that it
18 concerns a very old machine manufactured beyond
19 our responsibility (sic).
20 Q. Thank you. I'm going to draw your
21 attention now again to Exhibit D, a letter that's
22 been marked Exhibit D.
23 A. Yes.
24 Q. What date is that letter?
25 A. May 11th, 1999.

304
2 Q. And is that another letter you wrote to
3 Mr. Durst?
5 Q. Which you wrote yourself?
6 A. Yes.
7 Q. And you signed this document?
8 A. Yes.
9 Q. Was it a document kept in the ordinary
10 course of your business?
11 A. A document which was?
12 Q. Kept in the ordinary course of your
13 business?
14 Your company, you kept it at your
15 company?
16 A. Yes.
17 Q. And you're record's keeper for your
18 company?
19 A. Yes.
20 Q. Now in this letter of May 11th, 1999, to
21 Mr. Durst, what was the reason you wrote it?
22 A. The same as the other ones.
23 Q. Okay and in this letter you're telling
24 Mr. Durst that it's your opinion that Machine
25 Fabriek Tonnaer was the manufacturer of the

305
2 machine, isn't that right?
3 A. Um hum.
4 THE COURT: Is that a yes miss?
5 A. Yes. I'm sorry, yes.
6 Q. And you're telling him that it was in the
7 '50s and '60s that they manufactured those types
8 of machines?
9 A. Yes.
10 Q. Okay and prior to your writing this
11 letter, Mr. Durst never gave you a serial number
12 or any other --
13 A. No.
14 THE COURT: We've covered that.
15 Let's explore an area that we have not
16 covered.
17 Q. Now you talked about a new generation in
18 the fourth paragraph of this letter?
19 Could you tell us what you're talking
20 about in this letter with respect to the new
21 generation?
22 A. The new generation? Which paragraph?
23 Q. Fourth paragraph?
24 A. The new generation? We are. That's
25 obvious.
306
2 Q. And what do you mean by the new
3 generation?
4 A. New generation of Tonnaer.
5 Q. Okay, meaning you and your husband?
6 A. Yes.
7 Q. Okay. And you're telling Mr. Durst that
8 you're a completely independent company from your
9 father-in-law's company, right?
10 A. Yes.
11 Q. You're not a successor and interest?
12 A. No.
13 Q. All of that is true?
14 A. Yes.
15 Q. You're a completely different company,
16 right?
17 A. Yes. Yes.
18 Q. And you started your company in 1982,
19 right?
20 A. Yes, that's correct.
21 Q. Now, is it your testimony today that the
22 machine involved in the accident was delivered to
23 National Equipment in the United States by Machine
24 Fabriek Tonnaer?
25 A. Yes.
307
2 Q. I'm going to draw your attention to the
3 fifth paragraph of this letter, Miss Tonnaer?
4 A. Yes.
5 Q. Take a look at it. Review it.
6 A. Yes. Yes, I know what you mean.
7 Q. Okay, isn't it true that at this time
8 which was closer to the time of the accident May
9 11th, 1999, you wrote to Mr. Durst that you could
10 not be certain whether the concerning machine, as
11 you called it, was delivered to National
12 Equipment?
13 Didn't you write that?
14 A. Yes.
15 Q. And wasn't the time periods that were
16 talked about today fresher in your mind in 1999
17 when you wrote this letter than they are today?
18 A. No. No.
19 Q. You had better recollection five years
20 later?
21 A. No, but when I wrote this letter I wrote
22 some letters before. When you get sued, you going
23 -- you're minding what you're saying. So
24 everything you can say it can hold against you.
25 So --
308
2 Q. Well --
3 A. --that's why. The reason because I'm not
4 being sure about anything.
5 Q. So my question to you is, isn't it true
6 then that you're really not certain whether the
7 exact machine involved in Mr. Rodriguez's accident
8 was sold to National Equipment by your
9 father-in-law's company?
10 A. I am certain that all machines which were
11 exported to United States of American went by
13 Q. But this particular machine, as you wrote
14 to Mr. Durst in this letter where you said you
15 couldn't be concerned, you're not certain?
16 A. In this letter I don't but that's on
17 purpose. I'm not standing for trial here in this
18 letter. I'm sorry.
19 Q. So is it fair to say --
20 A. You have to cover yourself.
21 Q. Well, let me ask you this. Is it fair to
22 say that the statement made in this letter is
23 inconsistent with your testimony here today?
24 A. Yes.
25 Q. And again at the end of the letter you

309
2 mentioned that you were only 14 years old?
3 THE COURT: All right, Miss Cottes,
4 please. We've covered this ad nauseam.
5 Let's move on, all right. This is the new
6 generation of Tonnaer, as she said.
7 Q. You never worked at Machine Fabriek
8 Tonnaer, right?
9 THE COURT: We've got that. Let's
10 move on.
11 Q. Finally, again in this letter you asked
12 Mr. Durst to stop his lawsuit?
13 THE COURT: Yes?
14 A. And so it happened.
15 Q. Miss Tonnaer --
16 MS. COTTES: Judge, at this time I move
17 to have this document moved into evidence.
19 Any objection?
20 MR. DURST: Same objection, Your Honor.
21 I don't need to argue whether -- it's up
22 to you. I don't need to put any argument
23 on the record. Just general same
24 objection.
25 THE COURT: Well, let's have it on the

310
1 PROCEEDINGS
2 side-bar, please.
3 MR. DURST: Okay.
6 Counsel, on the record.)
7 THE COURT: What's the objection?
8 MR. DURST: It is not a business
9 record. It's prepared for litigation, and
10 the only thing admissible would be the
11 prior inconsistent statements, and they've
12 been testified to by the witness on the
13 stand today.
14 THE COURT: Anything?
16 MS. COTTES: No reference to litigation
17 in this letter. No reference to even
18 summons and complaint. The witness has
19 testified that it is a business record
20 that she kept as the record keeper in the
21 ordinary course of her company's business.
22 She authored the letter, she signed the
23 letter and there's clearly -- the witness
24 just admitted to the inconsistent
25 statement contained in this letter.

311
1 PROCEEDINGS
2 THE COURT: Okay, actually I am going
3 to reserve the right to withdraw that from
4 their consideration. Because now that I'm
5 thinking about it, if she's admitted
6 inconsistency, I'm not sure that that goes
7 in, all right.
8 MS. COTTES: Well, she was evasive
9 about it.
10 THE COURT: She admitted that was an
11 inconsistent statement based upon what she
12 testified.
13 You don't get to put that in. All
14 right.
15 MS. COTTES: So reserving.
16 THE COURT: I'm going to reserve it
17 just as not admitted. I'm reserving.
18 She's already stated that it is
19 inconsistent.
20 If I decide to not allow it in, I will
21 withdraw it from their consideration.
22 MS. COTTES: Since she's admitted the
23 inconsistency, can I have her read that
24 paragraph?
25 THE COURT: No.

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1 PROCEEDINGS
2 MS. COTTES: Unfortunately this isn't a
3 witness we can bring back --
4 THE COURT: That's why.
5 MS. COTTES: -- if you don't let it
6 come in.
7 THE COURT: That's why I'm reserving
8 on -- I am allowing you to lay the
9 foundation. Lay the foundation as a
10 business record, all right. If I decide
11 that because she's already testified that
12 it is inconsistent with which she
13 testified before and I have to read back,
14 I will have to get the court reporter to
15 read back some of that testimony because I
16 was having difficult following it. And I
17 may allow it to go in. I will let the
18 jurors know that I am reserving decision
19 on that and I may let it go in, all right.
20 MS. COTTES: Just note that --
21 THE COURT: To the extent that she's
22 not coming back, all right, I'm doing it
23 this way so if you have foundation
24 business record, if there's no
25 inconsistency, then it doesn't go in

313
1 PROCEEDINGS
2 because she's admitted that she was
3 inconsistent. All right. But you've laid
4 the foundation. She's not coming back. So
5 if I decide to let it in, we don't have a
6 problem.
7 MS. COTTES: Okay, I just thought it
8 would be more effective to have her read
9 this paragraph into the record.
10 THE COURT: I will allow you to read
11 that into the record.
12 MS. COTTES: Okay, now.
13 THE COURT: Well, we'll finish with
14 her, Miss Scotto can. But I will allow you
15 to hang on to it and read it into the
16 record.
17 MS. COTTES: At a later time or now?
18 THE COURT: Yes. But right now I want
19 her to -- Ms. Scotto to finish with this
20 witness. She's not coming back tomorrow.
21 MS. COTTES: At what time would I read
22 that in?
23 THE COURT: We can even give it to the
24 court reporter so she can type that in.
25 MS. COTTES: What I was getting at is I

314
2 want the witness to read it to the jury.
3 THE COURT: It won't be given to the
4 jury unless it's in evidence. You did a
5 good summary of it. You pretty much say
6 what's in there any way, all right.
10 MS. COTTES: For the record, Your
11 Honor, the decision on the Defendant's D,
12 is reserved?
13 THE COURT: Yes, I'm reserving
14 decision on allowing that into the record,
15 all right.
18 Q. Now Miss Tonnaer have you ever heard of
19 the Durst's Bakery?
20 A. Yes.
21 Q. How do you know of the Durst Bakery?
22 A. Because they sent me a fax.
23 Q. Could you explain that?
24 A. Yes, I can. We received a fax from the
25 Durst Bakery and showing machines which my

315
2 father-in-law manufactured and they were asking
3 whether we could provide spare parts for those
4 machines, and I answered yes.
5 Q. And do you know if the Durst Bakery was
6 related to Mr. Durst the plaintiff's lawyer at
7 all?
8 A. Yes.
9 Q. Did you ever meet Mr. Durst the baker?
10 A. Just on the phone.
11 Q. Okay, and was that the same Mr. Durst
12 sitting in the courtroom?
13 A. And that was the same Mr. Durst who was
14 sitting here in the courtroom.
15 Q. And what time period did you hear from
16 the Durst Bakery?
17 A. Before this all started.
18 Q. And did you eventually learn that it was
19 -- it was, uhm, a guy so-to-speak?
20 A. Yes.
21 Q. It was a --
22 A. Of course.
23 Q. He was?
24 A. I am --
25 Q. But while you were being told that he was

316
2 a bakery that you gave him information?
3 A. No, every baker -- you know, information
4 about this information or --
5 Q. Just any information? Did you answer his
6 questions?
7 A. I knew when we were fooled when we
8 received summons.
9 Q. So before he sued you, he contacted you
10 under the disguise of Durst Bakery?
11 A. Yes. I forgive him for that.
12 Q. You talked about earlier --
13 THE COURT: Just --
14 THE WITNESS: Sorry, I know.
15 THE COURT: All right, please, none of
16 that.
17 Q. You talked about earlier this morning how
18 the machine you pointed to in the photograph
19 worked?
20 A. Yes.
21 Q. Have you, yourself, ever operate one of
22 those machines?
23 A. I'm not a baker.
24 Q. Have you, yourself, ever operate one of
25 those machines?
317
2 A. New machines and reconditioned ones, yes.
3 Q. During what time period?
4 A. I'm still having -- I'm still doing
5 that.
6 When we build new machines there, they
7 are tried out and I'll be there.
8 Q. Would you agree that while the machine is
9 on, a person, obviously, shouldn't take and stick
10 his hands into the blades?
11 A. Of course, but he has to be told so.
12 MS. COTTES: I would just move to
13 strike the portion. That's not
14 responsive.
15 THE COURT: That's stricken.
16 Q. Did you bring any records with you today,
17 Miss Tonnaer?
18 A. Not today. No, not here in court.
19 Q. So you have no records, no documentation
20 that firmly link National Equipment to this
21 machine?
22 A. No.
23 MS. COTTES: I have nothing, nothing
24 else at this time.

318
1 MS. TONNAER - PLAINTIFF - CROSS/MS. SCOTTO
3 CROSS EXAMINATION
4 BY MS. SCOTTO:
5 Q. Good afternoon, Miss Tonnaer. My name is
6 Francine Scotto. I have a question for you about
7 your name.
8 You said your name is Margo Tonnaer?
9 A. Yes.
10 Q. Do you go by the name of Tonnaer Peters?
11 A. Yes.
12 Q. And, in fact, that's how you signed the
13 letters?
14 A. Yes.
15 Q. Is it your testimony that your company
16 accepts trade-ins of machines from any
17 manufacturer?
18 A. Accept?
19 Q. Yes? Do you take trade-ins of
20 machines --
21 A. Yes. Yes.
22 Q. --from any manufacturer or just Tonnaer
23 Machines?
24 A. No, also other manufacturers when we can
25 resell them.
319
2 THE COURT: I'm sorry say that again.
3 A. We also take used machines by trade-in
4 from other manufacturers when we can resell when
5 they are interested for our company to sell them
6 again.
7 Q. When you take them in, you recondition
8 them before you sell them?
9 A. Of course. You have to. You can't sell
10 those old machines.
11 Q. Is it the custom and practice in the
12 industry of this dough mixing manufacturing
13 business to accept trade-ins of any manufacturer?
14 A. I don't know what you mean by that.
15 Q. Is it the custom and practice of any
16 dough mixing manufacturer to take in trade-ins of
17 a dough mixing machines of any manufacturer?
18 A. Could be.
19 Q. You told us you know the business in
20 dough mixing machines, so I'm asking you?
21 A. I don't know what everyone does or not
22 does.
23 Q. You only know about your business and
24 your father-in-law's business?
25 A. I know the product of our businesses but

320
2 I do not know what the people trade-in over there.
3 Q. I would ask that you let me finish any
4 question before you answer.
5 A. Okay.
6 Q. Your testimony is you know the practice
7 of jury business?
8 You know your father-in-law's business
9 but nobody else's business, is that right?
10 A. I know the practice of others but I don't
11 know how they run their company.
12 Q. Okay. And you would agree with me that
13 there are businesses that you sell or your
14 father-in-law sold machines to that then resell
15 the machine; is that right?
16 A. You mean we have the same customers?
17 Q. Not the same customers. I'm asking you
18 as a practice, a machine is sold from the
19 manufacturer to a company and then that company
20 sometimes or often resells that machine; is that
21 right?
22 A. Yes.
23 Q. And sometimes when a manufacturer sells a
24 machine, sometimes it's used, is that right?
25 It's been reconditioned?

321
2 A. Yes.
3 Q. And sometimes you sell a re-conditioned
4 machine to a company that then sells it again, is
5 that right?
6 A. Most -- no, not likely.
7 Q. That never happens?
8 A. A number of the -- mostly when we have
9 reconditioned machines, we sell them to bakeries,
10 not to retailers.
11 Q. Directly to the bakery?
12 A. Yes.
13 Q. And there are times where a machine has
14 been reconditioned that is then later sold in an
15 auction?
16 A. I don't know of. I couldn't, I couldn't
17 know.
18 Q. Because once it leaves the manufacturer's
19 hands, you don't know what happens to it?
20 A. Of course not.
21 Q. You never had any relationship with
22 Ferrera Foods, is that right?
23 A. Yes.
24 Q. And your father-in-law's company never
25 had any relationship --

322
2 A. It's the first time.
3 Q. -- with Ferrera?
4 A. We hear of Ferrara Foods in this trial.
5 Q. Would you agree you don't know where
6 Ferrera Foods purchased its machines from?
7 A. Couldn't know.
8 Q. Do you know if they purchased it in new
9 or used --
10 A. I think they --
11 Q. I'm asking you if you know?
12 A. I couldn't know, but when they bought it
13 in the '70s, they bought it used because it was
14 manufactured in the '50s.
15 Q. Okay. And once the machine reaches the
16 bakery, you don't know what they do with it, is
17 that right?
18 A. Nope.
19 Q. You don't know how they use it?
20 A. When we sell a machine, we give
21 regulations with how to use it.
22 Q. Do you know --
23 A. But we don't control them.
24 Q. -- so you don't know how the bakery uses
25 the machines; is that right?

323
2 A. Of course not. We are not at the bakery
3 when they used it. It's --
4 A. That's the responsibility of those
5 people.
6 Q. You spoke about an affidavit before that
7 you prepared?
8 A. Sorry, can you speak.
9 Q. Of course. You spoke before about an
10 affidavit that you signed for Mr. Durst's firm a
11 while back.
12 Do you remember that?
13 A. Yes. Yes.
14 Q. You remember signing that affidavit?
15 Were you paid to sign that affidavit?
16 A. I make my costs from that. I have to go
17 to the notary and I charge him for that.
18 Q. What was your cost for that affidavit?
19 A. The same as now.
20 Q. What was your cost?
21 A. It was sometime ago. I have to look it
22 up. Few hours.
23 Q. At the same rate of $150 an hour?
24 A. Yes. Yes.
25 Q. Is Mr. Durst paying for your meals while

324
2 you're in New York?
3 A. Yes.
4 Q. Is he also paying for your brothers
5 meals?
6 A. For what?
7 Q. Your brother's meals?
8 A. Yes, I charge him for that.
9 Q. Does your brother work at your company?
10 A. Not any more.
11 Q. He did at one time?
12 A. Yes.
13 Q. Is your brother being paid for his time
14 here?
15 A. No, he's just accompanying. Of course, I
16 don't want to travel alone.
17 Q. Who was it that faxed the photographs to
18 you?
19 Was it Mr. Durst the lawyer or was it Mr.
20 Durst the baker?
21 A. The machine was sent by Mr. Durst the
22 baker.
23 Q. The photo?
24 A. I already told so.
25 Q. The photos?
325
2 A. The photos.
3 Q. Who was it that contacted you about
4 signing that affidavit?
5 A. Mr. Durst.
6 Q. So you spoke with him then?
7 A. Of course.
8 Q. Do you know what year that was?
9 A. Sorry.
10 Q. Do you know what year that was?
11 A. Just -- no. You can see it over there.
12 Just before I signed it. I think it was 2001.
13 Q. Did you ever speak with anybody else from
14 Mr. Durst's office other than Mr. Durst and the
15 gentleman that you told us was in the courtroom
16 before Mr. Barrens. B-a-r-r-e-n-s (sic)?
17 A. No.
18 Q. How did it come about that you came to
19 this trial in New York?
20 Who requested you to be here?
21 A. Mr. Durst, of course.
22 Q. Himself? He's the one that called you?
23 A. Yes, yes.
24 Q. When did he call you and asked to you
25 come to New York?

326
2 A. Last week.
3 Q. And what was it that he said to you?
4 A. Sorry?
5 Q. What was it that he said to you?
6 A. He asked me to come here and to testify
7 what I knew.
8 Q. And did you have any conversation at that
9 time about the machine or your knowledge of the
10 machine?
11 A. I already -- he already knew that.
12 Q. You had already gone over that with him?
13 A. He knows. He already knew what I knew
14 about the machine, otherwise, he won't ask me to
15 testify here.
16 Q. Let me ask you, did Tonnaer, your
17 father-in-law's company Tonnaer, did they make two
18 armed mixers?
19 A. Yes.
20 Q. Did they make one armed mixers?
21 A. Also.
22 Q. I'm going to ask that you take a look at
23 Plaintiff's Exhibit 3, in evidence. The
24 photograph.
25 Thank you, that's it.

327
2 Miss Tonnaer, my question is very
3 specific. I want you to take a look at that photo
4 and based on your review of that photo can you
5 tell me how many arms that mixer has?
6 A. Of course not. That's the outside.
7 MS. SCOTTO: Thank you.
8 Q. I ask that you just put it down.
9 In those letters that you wrote to Mr.
10 Durst Defendant's Exhibits C, D -- B, C and D --
11 MS. SCOTTO: Are those available?
12 MS. COTTES: Yes. Here.
13 Q. Mrs. Tonnaer, the purpose of those letters
14 was to try and distance yourself as much as
15 possible from this machine in the photos, isn't
16 that right?
17 A. No.
18 Q. No, that wasn't your purpose?
19 A. No, I told you, I told your colleagues
20 what the purpose was.
21 Q. Not my colleague?
22 A. Oh, I'm sorry. I don't know who you are
23 so.
24 Q. I represent Ferrera Food?
25 A. Okay. The main reason was to inform him

328
2 that we were not the manufacturer.
3 Q. Because you didn't want to be sued?
4 A. Of course not.
5 Q. So you were trying to distance yourself
6 from this lawsuit as much as you could?
7 A. That's logical, when you're not
8 manufacturer you can't be sued.
9 Q. And in your letters the purpose of part
10 of -- the purpose of your letters were to demand
11 Mr. Durst drop this lawsuit against you, is that
12 right?
13 A. Yes. Yes.
14 Q. When you were testifying before about the
15 letter you wrote May 11th, 1999, Defendant's
16 Exhibit D, you said that you were very careful in
17 that letter?
18 A. Sorry D?
19 Q. D of?
20 A. Yes.
21 Q. Because you were minding what you were
22 saying.
23 A. Yes.
24 Q. So at that time you were concerned about
25 being sued?
329
2 A. You never know what they do here in
3 American.
4 I'm sorry. I don't know the court here.
5 Q. So you were minding what you were saying?
6 A. Of course.
7 Q. Is that correct?
8 A. Of course.
9 Q. But that lawsuit against you now doesn't
10 exist any more?
11 A. There isn't any lawsuit against us.
12 Q. It's over?
13 A. Yes.
14 Q. So you don't have to be careful and mind
15 what you say at this point, do you?
16 A. No, no, no, no, no.
17 Q. In fact, when you wrote the letter
18 Defendant's Exhibit C, that is the one from
19 November 23rd, 1998, you were pretty angry at that
20 point, weren't you?
21 A. If I was angry at that? Of course I was
22 angry because he -- I had a very bad argument with
23 him about the Durst Bakery, et cetera, et cetera.
24 Q. And that's why you used exclaimation
25 points in your letter; is that right?

330
2 A. That's why.
3 Q. Is that why because you were angry?
4 A. Yes, of course.
5 Q. Isn't it true that Money Lenders took
6 over your father-in-law's business at the end?
7 A. Yes.
9 Q. When did they take it over?
11 Q. Did your father-in-law's records
12 concerning his business ever go to anyone else to
13 the whoever took over his business?
14 A. No.
15 Q. You're shaking your head?
16 A. Yes, because they were in our cellar.
17 THE COURT: I'm sorry they were?
18 A. In our cellar. In the basement of our
19 house.
20 Q. So the new owners of the business never
21 took possession of the records?
22 A. No, they were old records.
23 Q. So they never took --
24 A. They only existed a few years and then
25 they went bankrupt, and you are not obliged to

331
2 keep the records so long in our country. So they
3 didn't need it.
4 Q. When you were sued, you hired a lawyer;
5 isn't that right?
6 A. Yes.
7 Q. It was the Van Riet and Deidern firm; is
8 that correct?
9 A. Van Riet, R-I-E-T, and I think and
10 partners.
11 Q. And the last name is D-E-I-D-E-R-E-N?
12 A. Deideren. Yes, yes.
13 Q. That was the law firm that you hired?
14 A. Yes.
15 Q. And that cost you money, didn't it, to
16 hire a law firm?
17 A. Not much because we had insurance for it.
18 We were insured for the costs of the attorney, but
19 not for an attorney here in the United States only
20 because we do not business with the United States.
21 Q. So it didn't cost you any money?
22 A. A few hundred dollars.
23 MS. SCOTTO: I don't have any further
24 questions. Thank you.

332
1 PROCEEDINGS
2 THE COURT: Any redirect?
3 MR. DURST: No redirect, Your Honor.
4 THE COURT: All right. You may step
5 down, Miss Tonnaer.
6 THE COURT: Counsel approach.
9 Counsel, outside the hearing of the sworn
10 jurors, off the record.)
11 THE COURT: All right ladies and
12 gentlemen, since it's late in the
13 afternoon rather than calling another
14 witness for few a moments we're going to
15 start up tomorrow morning and tomorrow
16 we'll start at about -- why don't we say
17 9:45 tomorrow morning. I believe we can
18 anticipate having a full day tomorrow
19 morning as well.
20 All right, everyone. I want to thank
21 you so very much for your patience. You've
22 been very, very, very good to us with
23 regard to your patience and thank you so
24 much. And once again I will admonish you
25 as I will every time that we break.

333
1 PROCEEDINGS
2 Please do not discuss the case amongst
3 yourselves, or with anyone else. Do not
4 allow anyone to discuss it with you in
5 your presence. Please do not go to the
6 area in question and please don't speak to
7 any of the attorneys, parties or witnesses
8 and don't forget ladies and gentlemen you
9 will utilize every elevator bank except
10 elevator bank A. Everyone have a good
11 night. Be safe see you tomorrow morning
12 at what time?
13 THE JURY PANEL: 9:45.
14 THE COURT OFFICER: Jurors, please.
16 courtroom.)
17 THE COURT: Okay, are there any other
18 applications?
20 application to strike the testimony of
21 Miss Tonnaer because it's not based upon
22 personal knowledge.
23 THE COURT: Well, what aspect?
24 MS. SCOTTO: Her entire testimony is
25 not based on personal knowledge.

334
1 PROCEEDINGS
2 I ask that the entire testimony be
3 stricken.
4 MS. COTTES: I would concur in that.
5 It was clear that she testified as a much
6 younger woman she had several conversation
7 with her father-in-law and she's had
8 conversations with her husband and she met
9 Arthur Greenberg once at a fair.
10 I mean other than seeing Arthur
11 Greenberg everything else she testified
12 her knowledge was based on was pure
13 hearsay. Her testimony shouldn't have been
14 admitted on direct and I move to strike
15 the entire testimony, as well.
17 MR. DURST: I just disagree, Your
18 Honor.
19 THE COURT: That's it?
20 MR. DURST: Yeah, I mean --
21 THE COURT: How about some argument
22 the for the record, Mr. Durst?
23 MR. DURST: It seemed to me that her
24 testimony was based upon knowledge gained
25 through her business and hearsay

335
1 PROCEEDINGS
2 information gained through business for
3 business purposes can be utilized to make
4 business decisions and to learn your
5 business.
6 Typically you learn much of your
7 business from what people tell you and
8 that's very important business
9 information. It's very difficult to learn
10 all your business from documents. You have
11 to learn it from consultings things and
12 experts and people that teach you the
13 business.
14 She was instrumental in the
15 exportation of the products that were
16 used, sold by her company. Her
17 father-in-law worked for her. As a
18 consultant he taught her all about the
19 exporting of the machinery and parts of it
20 and one of the most important aspects of
21 learning about the expert business is to
22 know what -- who you're distributors are
23 and who they can be. Who -- your customer
24 base, what your customer base is and, of
25 course, that includes knowing who the

336
1 PROCEEDINGS
2 distributor is for one of the major
3 markets in the world the United States of
4 American and the knowledge that there was
5 only one distributor that was utilized by
6 the predecessor company is very important
7 information that a witness -- that a
8 business person would learn.
9 The fact that she went over the
10 invoices, she saw the invoice herself to
11 NEC, means to me that she has very
12 significant information with regard to who
13 the distributor of those machines were in
14 the United States. Her testimony was quite
15 unequivocal that the distributor was NEC
16 and only NEC subsequently that is
17 relevant. I don't see -- it's logically
18 relevant and it's legally relevant. I see
19 no grounds to exclude it. There's no
20 collateral reason to exclude it and it is
21 logically relevant, therefore, legally
22 relevant. Therefore, it should be
23 admitted.
24 THE COURT: Okay, counsels, with
25 regard to your argument that she was a

337
1 PROCEEDINGS
2 mere child or maybe wasn't even born when
3 her father-in-law's business was up and
4 running in the '50 and '60 she's explained
5 thoroughly that she, herself, while she
6 may not have been physically present on
7 the premises to know the inner workings of
8 that particular company, she gained that
9 knowledge through her interactions with
10 the father-in-law through her review of
11 various documents. She referred to
12 invoices, through her testimony, that she
13 knew based upon her father-in-law being on
14 board with her, reorganized -- strike that
15 not reorganized. The next generation of
16 Tonnaer Manufactures based on the fact he
17 was with them, that he gave knowledge with
18 regard to the inner workings of his past
19 business and with regard to the
20 distributors that that business
21 distributed to the United States. So she
22 does to have firsthand knowledge.
23 Just as, for example, Johnson and
24 Johnson has been around in this country
25 for more than a hundred years and dare say

338
1 PROCEEDINGS
2 that Mr. Sam Johnson has probably had
3 occasion to review the minutes of
4 documents of the companies dating back 100
5 years and that's the way in American that
6 we too gain knowledge of past business
7 practices of a hidden corporate entity.
8 The fact that she wasn't there when
9 the corporation was initially doing
10 business in the '50s does not mean that
11 she has not gained business information
12 through her work in her business which is
13 derived from the workings of the prior
14 business of the father-in-law. If anything
15 that might go to the weight of her
16 testimony but that's for the jury to
17 decide. So on that ground that application
18 is denied.
20 add for the record that she never worked
21 for her father-in-law's company and that
22 her company is not the successor in
23 interest of her father-in-laws company.
24 THE COURT: I understand that. The
25 record is clear. She never came in here

339
1 PROCEEDINGS
2 presenting herself to have been an
3 employee of the father-in-law's
4 corporation. She merely indicated that
5 based upon the knowledge that he shared
6 with his sons and his daughter-in-law with
7 regard to how to run an operation that is
8 in the business of manufacturing dough
9 mixers, she gained that knowledge from her
10 father-in-law directly.
11 All right, I don't think she needs to
12 have worked for him in order for her to
13 understand the workings of that business
14 and it was abundantly clear to this jury
15 that her current business with her husband
16 is not a successor in interests. It's a
17 separate business doing the same thing
18 that the father-in-law's business did.
19 All right, tomorrow morning at 9:45.
20 I'll give you my rulings with regard to
21 these items. All right.
23 I did have an application. It's
24 looking ahead to plaintiff's vocational
25 rehab expert Albert Griffith.

340
1 PROCEEDINGS
2 He's, according to his resume and his
3 report, a licensed psychologist, not
4 vocational rehabilitationalist.
5 I note in his report he's mentions his
6 comments as to psychological problems,
7 depression and related conditions of the
8 plaintiff.
9 This plaintiff had no psychological
10 treatment and I would just move to
11 preclude any questions and responses on
12 psychological treatment from the
13 employability expert who's being brought
14 into this court as vocational
15 rehabilitationalist. He doesn't do any
16 hands-on job placement. He's a
17 psychologist and teacher. So to the
18 extent plaintiff has not had psychological
19 treatment I would move to preclude any
20 discussions with that employability expert
21 as to psychological treatment.
22 MS. SCOTTO: Your Honor, I would also
23 join in that application. In addition to
24 the ground that Miss Cottes gave, I would
25 also like to add that the pleadings have

341
1 PROCEEDINGS
2 no claim for psychological injury.
4 MR. DURST: The witness will testify
5 to the depression certainly that he
6 observed and evaluated.
7 He is a psychologist. He does have the
8 skills to evaluate that.
9 THE COURT: I want to direct your
10 response with regard to your pleading.
11 You're not making any demands with regard
12 to psychological issues are you?
13 MR. DURST: Yes, Your Honor, of
14 course.
15 THE COURT: Where is that in your
16 pleadings?
17 MR. DURST: Pain, pain and suffering.
18 Suffering includes psychological injury.
19 He has suffered severely, of course,
20 from this injury and the fact that he's
21 depressed is certainly part of the case.
22 To suggest that the we didn't -- they're
23 not on notice that he suffered from this
24 injury and he suffered depression and all
25 the psychological things that go with it

342
1 PROCEEDINGS
2 would be simply astounding because, you
3 know, obviously, the claim is that he was
4 depressed. Of course, he's depressed from
5 the accident and the injury and he
6 testified to that at the depositions. The
7 report was exchanged long, long time ago.
8 If they wanted to counter anything in the
9 report, they had ample opportunity to do
10 so. And --
11 THE COURT: We'll take this up again
12 tomorrow morning, all right.
13 Have a good night everyone.
15 May 20th, 2004, continued trial.)
17
18
19
20
21
22
23
24
25
343
2 COUNTY OF BRONX : CIVIL TERM : IA-22

-----------------------------------------x
3 CIRRO RODRIGUEZ, :Index:
4 Plaintiff(s), 16482/95
-against- :
5
NATIONAL EQUIPMENT CORPORATION, :Trial
6
Defendant(s), :
7 And
8
Third Party Plaintiff(s):
9
-against- :
10
11
Third Party Defendant(s):
12 -----------------------------------------x
851 Grand Concourse
May 20th, 2004
14
B E F O R E:
Justice & jury.
16
17
PLAINTIFF: JOHN E. DURST, JR.
18 285 Broadway
New York, NY
19
DEFENDANT: EUSTACE & MARGUEZ
20 ROSE COTTES, ESQ.
311 Marmaroneck Avenue
21 White Plains, NY
22 DEFENDANT: NEWMAN FITCH ALTHEIM MYERS, PC

FRANCINE SCOTTO, ESQ.
23 14 Wall Street
New York, NY
24
LORRAINE L. RAMSEY
25 Senior Court Reporter
344
1 PROCEEDINGS
2 THE COURT: We've had a phone call
3 but not actually here in the courtroom but
4 the jury room clerk received a phone call
5 from juror number four Miss Delarosa.
6 When you were voir diring her, did she
7 ever indicate anything with regard to a
8 back condition that she may have had?
9 MS. SCOTTO: No.
10 MS. COTTES: No.
11 THE COURT: All right. She called to
12 say that she had been spasming, that's why
13 I looked at her questionnaire to see if
14 she had ever sued anyone or been sued
15 because I thought maybe she had been in
16 some sort of accident.
17 But she called to say that her back
18 had been spasming, that she was in
19 tremendous pain and that she was going to
20 the -- I'm not sure if it was the
21 emergency room or see a doctor, and the
22 clerk down stairs advised her to give us a
23 call back in the afternoon and let us know
24 what her condition is. This might be him
25 now trying to getting us her home number

345
1 PROCEEDINGS
2 if she, in fact, left a home number with
3 her summons. She only gave us a cell
4 number and that cell number when it's
5 called rings continuously without a voice
6 message coming on. So unless she's
7 actually home, we may not be able to reach
8 her. If she's in the hospital and she has
9 a cell phone with her, she needs to turn
10 it off when she's in the hospital. So at
11 this point --
12 THE COURT CLERK: Judge, I have that
13 clerk on five. The first line.
15 proceedings.)
16 THE COURT: Okay, where was I? I've
17 just gotten a call from the clerk who
18 spoke with her initially. He checked the
19 summons and the summons does not contain a
20 home phone number.
21 As I said, there's only the cell
22 number. We can't reach her on the cell
23 number but he did advise her to call us in
24 the early part of the afternoon to advise
25 us if she felt that she would be with us

346
1 PROCEEDINGS
2 tomorrow for the balance of the trial.
3 I don't necessarily know that this is
4 an emergency situation such that we will
5 need to excuse her. We have three
6 alternates. I'm just very much concerned.
7 We started off losing one of the
8 alternates and now we have a regular sworn
9 juror who's out today. So, I'm not sure
10 what you want to do. Let's go off the
11 record for a moment.
15 the sworn jurors.)
16 THE COURT: Let's go back on the
17 record.
18 All right, so what is your preference
19 with regard to juror -- sworn juror number
20 four maybe available to us tomorrow.
21 MR. DURST: Your Honor, I have a
22 witness here who was here yesterday and
23 didn't get to get on. He's a professional
24 witness and I really can't adjourn his
25 testimony without risking losing his

347
1 PROCEEDINGS
2 testimony. So I would prefer to replace
3 juror number four with an alternate.
4 THE COURT: Miss Cottes?
5 MS. COTTES: I have no problem
6 replacing juror number four with one of
7 the alternates.
8 MS. SCOTTO: Your Honor, I have no
9 objection to using one of the alternates.
10 THE COURT: Okay. All right. This is
11 an unusual situation where we started off
12 the trial with three alternates in the
13 event that this would be a prolonged trial
14 we would have sufficient alternates.
15 We started off by losing one of our
16 three alternates just before we were to
17 begin and so we had to have another
18 alternate and actually at this point I'm
19 glad that we did select that third
20 alternate because now it appears that
21 juror number four Miss Delarosa is out
22 with a back condition.
23 So since you've all elected to proceed
24 with the trial and select alternate number
25 one to sit in the place of juror number

348
1 PROCEEDINGS
2 four, we will do that. But be advised that
3 we have two alternates remaining. There
4 are many, many witnesses to come.
5 MS. SCOTTO: Understood, Your Honor.
6 THE COURT: Okay, we're in the robing
7 room also for the purpose of discussing
8 the motions with regard to Doctor Griffith
9 that were raised yesterday and that was by
10 Miss Cottes, is that correct?
11 MS. COTTES: Yes.
12 MS. SCOTTO: Actually it was a joint.
13 MS. COTTES: I initiated it but Miss
14 Scotto concurred in it.
15 THE COURT: All right, I reviewed the
16 paperwork, various pleadings, memos,
17 etcetera and based on the report that was
18 attached to the various papers by Doctor
19 Griffith, I believe, and his curriculum
20 vitae there is no surprises in terms of
21 the marked pleadings.
22 And with regard to Mr. Rodriguez's
23 ability to be employable. In view of the
24 fact that Mr. Griffith does have the
25 background in I believe he said his

349
1 PROCEEDINGS
2 paperwork indicates that he's a
3 psychoanalyst or psychologist.
4 MS. COTTES: Psychologist.
6 THE COURT: All right. So certainly
7 he has the expertise to testify vis-a-vis
8 Mr. Rodriguez's mental abilities.
9 So I will allow him to testify with
10 regard to that if that is within his
11 expertise. All right.
13 add for the record -- may I read what the
14 plaintiff's pleading actually says?
15 THE COURT: Yeah, I understand but he
16 has amplified it sufficiently.
17 You have the Doctor Griffith
18 curriculum vitae, you have his report, he
19 does in the report refer a few times to
20 Mr. Rodriguez's depression attributable to
21 the loss of the fingers. So if that has
22 some bearing again on his employability,
23 train ability, then in view of the fact
24 that you do have disclosure with regard to
25 his expertise in the various fields that

350
1 PROCEEDINGS
2 he has expertise, I will allow him to
3 testify.
4 The pleadings are part of my record. I
5 always make those part of the Court record
6 as court exhibits. So they would be
7 included.
10 MS. COTTES: Your Honor, I would just I
11 know, you've made your ruling during
12 motions in limine on this employability
13 expert not being able to testify as to
14 numbers.
15 I would just, you know, remind --
16 before it's before the jury remind
17 plaintiff's counsel that he is not to
18 testify to any actual numbers.
19 THE COURT: Mr. Durst, you understand
20 that?
22 THE COURT: Okay, I guess we are --
23 now all of the other jurors are present.
24 Correct, Mr. Stubbs?
25 She was the only remaining juror that

351
1 PROCEEDINGS
2 wasn't spoken for?
3 THE COURT CLERK: That's correct.
4 THE COURT: Okay, unless there's
5 something else, we'll be ready to start in
6 a few minutes. Off the record.
8 proceedings.)
10 THE COURT: Be seated.
11 MR. DURST: Your Honor, I wanted to --
12 they are faxing the regulations over. I
13 have some of them in here.
14 I want to give them in writing to the
15 counsel. I have to go on my computer to do
16 so.
17 THE COURT: We're starting with the
18 trial, right?
20 rise.
23 seats.)
25 gentlemen. Have a seat everyone.

352
1 PROCEEDINGS
2 Well, they say lightning doesn't
3 strike twice in the same place.
4 Regrettably we've just experienced that.
5 Remember when I initially informed you
6 that the alternates were to be available
7 if one of the sworn jurors became
8 unavailable by some unforeseen,
9 unexpected, extreme emergency. Well, we
10 have had to have let me make sure I get
11 your name correct. Miss Young?
12 THE JUROR: Yes.
13 THE COURT: Is now sworn juror number
14 four in the place of Miss Maria Delarosa
15 who called in to say she had an emergency
16 situation.
17 So, we now have Miss Young as juror
18 number four which means Miss White you are
19 alternate number one and Mr. Caputo you
20 are alternate number two.
21 Please, ladies and gentlemen, please,
22 please, please do everything that you can
23 to stay healthy and come to court everyday
24 when we ask you to come to court because
25 we anticipate being on trial for at least

353
1 PROCEEDINGS
2 another week.
3 Hopefully no longer than another week
4 but at least another week. So please,
5 please, please we cannot afford to lose
6 you ladies and gentlemen.
7 Also we love seeing you hear every
8 single day, so please take care. All
9 right everyone?
10 Okay. Without any further delay, Mr.
11 Durst, do you have a witness to call?
12 MR. DURST: Yes, Your Honor. I call
13 Albert R. Griffith at this time.
14 THE COURT OFFICER: Please remain
15 standing. Place your left hand on the
16 Bible, face the clerk of the court.
17 ALBERT R. GRIFFITH, a witness called
18 by and on behalf of the PLAINTIFF, upon being duly
19 sworn, testified as follows:
20 THE WITNESS: I do.
21 THE COURT CLERK: Thank you. Please
22 be seated, sir.
23 Give us your name for the record.
24 THE WITNESS: Albert R. Griffith.
25 THE COURT CLERK: Spelled ALBERT R.

354
1 DR. GRIFFITH - PLAINTIFF - DIRECT
2 GRIFFITH.
3 Is that correct?
4 THE WITNESS: That's correct. Yes, it
5 is.
6 THE COURT CLERK: Business address,
7 please.
8 THE WITNESS: 17 Academy Street Newark,
9 New Jersey.
10 THE COURT CLERK: Thank you.
11 THE COURT: Good morning, Doctor
12 Griffith.
13 THE WITNESS: Good morning, Judge.
14 THE COURT: All right, sir. Obviously,
15 you know how to speak up nice and loudly,
16 so I won't have to ask you to do that,
17 sir, but I am going to ask you to when you
18 testify, testify slowly. All right, sir?
19 THE WITNESS: I'll try to remember.
20 THE COURT: Very good and loud and
21 clear. Just slowly.
22 All right, Mr. Durst.
25 BY MR. DURST:
355
2 Q. Good morning, Doctor Griffith.
3 A. Good morning, counsel.
4 Q. Will you describe for the jury your
5 educational background?
6 A. Sure. Yes. I have a bachelors degree
7 from City College here in New York. Also I have my
8 masters degree from Lehman College. I also have a
9 doctorate from Columbia University. All here in
10 New York.
11 Q. And would you describe your work
12 experience since graduating, for the jury --
13 A. Sure.
14 Q. -- and the Court?
15 A. I've had a variety of experiences.
16 I started out as a social worker actually
17 for the Department of Ocean Services here in the
18 City. Later became a probation officer.
19 THE COURT: I'm sorry. Later became?
20 A. A probation officer.
21 After my doctorate, I was able to teach
22 college.
23 I taught Boston University for four
24 years, five years, as a counsel clinic
25 psychologist. I had my own training program where

356
2 we were --
3 THE COURT: Sir, a little slower.
5 A. PHD. Post PHD Boston University taught --
6 Q. Okay, sir, and what did you teach?
7 I'm sorry, sir.
8 A. I taught counseling to masters and
9 doctorate students at Boston University. Had my
10 own Federally Funded training program there and
11 during the last three years of my experience there
12 was able to teach and train minority students to
13 become psychologist and master level counselors,
14 since leaving Boston in 1980 licensed psychologist
15 and my practice is in New Jersey.
16 For the most part I do consulting
17 psychology. I provide services throughout the
18 Division of Youth and Family Services. That's
19 doing assessments, parents and children.
20 I also provide services to the Division
21 of Vocational Rehabilitation. That's a state
22 agency that's funded to provide retrain and
23 services for the most part to individuals who have
24 had various kinds of disabilities.
25 And in addition to that I do

357
2 employability work as employability expert. And
3 I've been doing this for about 20 years. And I do
4 both defense work and plaintiff work. That is
5 people who've been injured, as well as work for
6 the opposing side.
7 I also do some therapy as a counseling
8 psychologist. I see individuals and that's maybe
9 about ten percent of my practice today.
10 So that's what I do.
11 Q. Did there come a time that Mr. Rodriguez
12 retained you through us to evaluate what job Mr.
13 Rodriguez would be able to do now and in the
14 future?
15 A. Yes.
16 Q. And that is determining someone's
17 employability; is that correct?
18 A. That's exactly what we do as
19 employability experts, yes.
20 Q. And he paid you for your evaluation, am I
21 correct?
22 A. Yes.
23 Q. For your time in doing that evaluation?
24 A. That's correct. Yes.
25 Q. And would you tell the jury what you're

358
2 being paid?
3 A. I believe the fee for this report would
4 be 25 hundred dollars, and I get paid for
5 deposition which is not applicable here.
6 But testimony time, the time that I
7 spend coming to and waiting for the deposition.
8 Q. Is your opinion based at all upon which
9 side you testify for?
10 A. Certainly not. I'm a professional, as I
11 indicated. I have testified on both plaintiff's
12 side and defense side.
13 Further, I'm a Fellow in the American
14 College of Forensic Examiners. So we have a code
15 of ethics and that means that our opinions are not
16 for sale.
17 Q. Now, I brought him to your office; am I
18 correct?
19 A. As I recall, yes.
20 Q. Yes. And do you remember I left after I
21 got him there and you interviewed him privately;
22 am I correct?
24 Q. With an interpreter?
25 A. Through an interpreter, that's correct.

359
2 Q. Now do you have an opinion --
3 MR. DURST: Your Honor, I offer him as
4 an employability expert at this time.
5 THE COURT: All right. Well, Mr. --
6 I'm sorry, Doctor Griffith will testify in
7 that capacity. It's for the jury to
8 decide whether he's an expert.
11 Q. Now, do you have an opinion, with a
12 reasonable degree of certainty, as to whether Mr.
13 Rodriguez -- as to his employability in the
14 future?
15 A. I do.
16 MS. COTTES: Objection. Insufficient.
17 THE COURT: Yes.
18 MS. COTTES: Foundation.
19 THE COURT: Let's lay a foundation
20 first.
21 Q. Okay, did you evaluate his employability
22 through that interview?
23 A. I did.
24 Q. Did you also review his background?
25 A. I did.
360
2 Q. And his activities?
3 A. I did.
4 Q. His education?
5 A. Yes.
6 Q. You reviewed documents?
7 A. Yes.
8 Q. And you discussed the incident --
9 A. Yes.
10 Q. -- with him and you also evaluated his
11 current health and past health?
12 A. I did, yes.
13 Q. And his past employment?
14 A. I did. Yes.
15 Q. Prior, prior testing?
16 A. Yes.
17 Q. And you performed vocational analysis of
18 him?
19 A. I did, yes.
20 Q. And that included things like his
21 intellectual level, his skill level, his
22 experience level, physical limitations,
23 psychological limitations?
24 A. Yes.
25 Q. Okay. And the ability of vocational

361
2 rehabilitation for him?
3 A. Yes.
4 Q. And his current disability -- you came to
5 some conclusions as to --
6 MS. COTTES: Judge, I'm going to
7 object to the leading.
9 Mr. Durst, let's hear what the doctor
10 did. Ask direct questions.
11 MR. DURST: Sure.
12 Q. Would you tell us what's the basis -- just
13 a general foundation -- you have for rendering
14 that opinion?
15 A. I'm not sure I understand the question.
16 But if you mean generally why I reached my
17 conclusion --
18 Q. Yes?
19 A. -- as to whether or not --
20 Q. Before we get into the details.
21 A. Fine. Fine.
22 Q. Based --
23 A. Based on the fact that Mr. Rodriguez had
24 a number of disabling or a number of conditions
25 that affected his disability.

362
2 First of all, he had no use of his right
3 hand.
4 THE COURT: Doctor, please, I'm going
5 to ask you to just slow down a little bit,
6 please. I'm sorry.
7 A. Excuse me.
8 THE COURT: You're loud and I love it
9 but a little slower, please.
10 A. Okay. He had missing fingers from his
11 right hand, and medical documentation that he was
12 unable to use his right hand.
13 He was not an educated young man. He had
14 the equivalent of a tenth grade education. He had
15 no skills in which he had yet been trained.
16 Remember, he was only 19 years old. And
17 he has little use, little functional use of the
18 English language.
19 This was a relatively recent immigrant
20 from Mexico. So based on that combination of
21 conditions, I felt that this young man was
22 disabled based on the criteria that I've
23 described.
24 Q. Now, do you have an opinion, with a
25 reasonable degree of certainty, as to whether Mr.

363
2 -- as to Mr. Rodriguez his employability, based on
3 that employability analysis, now and in the
4 future?
5 A. Yes.
6 Q. And just briefly what is that opinion?
7 Before you go into the basis of it, what
8 is that opinion?
9 A. Essentially that he remains severely
10 disabled.
11 Q. And how about in the future?
12 A. The probability is that he will, he will
13 remain severely disabled.
14 Q. Okay, now would you explain to the jury,
15 now, how you come to that conclusion with all the
16 things that you used as the basis for that
17 conclusion?
18 And feel free, if the Court will permit
19 me, to refer to your report to refresh your
20 recollection, if need be.
21 THE COURT: Do you need to refresh
22 your recollection?
23 THE WITNESS: Yes. Oh, yes, Judge.
24 A. Well, I'm sorry. If I could just refer
25 to it as I'm testifying is what I meant.

364
2 THE COURT: If you need to refresh
3 your recollection, you may refer to it.
4 Yes.
6 A. Okay. Essentially I saw Mr. Rodriguez in
7 my office on January 19th before his arrival --
8 THE COURT: January 19th of what
9 year?
10 THE WITNESS: This year. I'm sorry.
11 A. Before his arrival I had reviewed some
12 documentation that his attorney had sent. The
13 usual.
14 They are some actually medical
15 documentation from his treating physicians, a
16 consulting physician.
17 There was a prior report that an
18 employability expert had done and there was a
19 deposition transcript that Mr. Rodriguez had given
20 in 1997.
21 So with all that information I had before
22 -- so all of that information I had before I saw
23 the client.
24 The next step then was to take a look at
25 his background. Find out essentially what Mr.

365
2 Rodriguez was bringing.
3 At the time that I saw him he was 27
4 years old. And he had described the fact that he
5 was an oldest child of four siblings and he grew
6 up in Southern Mexico.
7 Southern Mexico, of course, is the
8 poorest part of Mexico. In many ways --
9 MS. COTTES: Note my objection.
11 THE COURT: Yes, that's sustained.
12 That's stricken.
13 A. He grew up in a farming family. His dad
14 supported his family through his earnings through
15 the farm, and Mr. Rodriguez came to the United
16 states in 1994, at the age of 18, to live with an
17 uncle here in Brooklyn in order to work.
18 So his objective was to come to the
19 United States to get a job.
20 I then took a look at his activities of
21 daily living. And he describe the usual life of a
22 young man. He worked at sometimes -- at times
23 more than one job. He had friends that he
24 entertained. He played the guitar. He draws and he
25 listens to music.
366
2 So, all in all nothing unremarkable.
3 Certainly not any indication of a disability.
4 Since his injury his life has, of course,
5 become more subdued. He is unable to continue to
6 do the kind of things that he did do. That is he
7 has fewer friends. He described himself as no
8 longer being able to play the guitar or to draw.
9 He indicated that he did not have a
10 girlfriend. He was asked specific questions about
11 what he is able to do in terms of his usual
12 routine and he indicated that essentially he had
13 to wear his hair shorter because he's unable to
14 manipulate a comb and he has troubles with buttons
15 and zippers but, otherwise, he's pretty much able
16 to care for himself.
17 So this is not an individual who is
18 claiming to not be able to function at all.
19 We then took a look at his education and
20 Mr. Rodriguez had attended ten years of schooling
21 in the public school system in his native Mexico.
22 He completed the one year course in
23 automobile repair in a private vocational school
24 also in Mexico.
25 He completed about five months of a radio

367
2 technician course that he did not complete. That
3 is he didn't complete the entire course just
4 immediately before coming to this country.
5 So his educational background using the
6 Department of Labor Standards would suggest that
7 he is able to do unskilled work or entry level
8 semi-skilled work.
9 In his training, he didn't complete the
10 certificate program in becoming an automobile
11 mechanic which would allow him to be able to work
12 as an automobile mechanic's helper.
13 Again, this is in 1993, more than ten
14 years ago, is a field in which he has not worked
15 and that was the limit of his skilled training.
16 So, at best he had entry level
17 semi-skilled ability.
18 He then was asked about the incident
19 where he was injured and he described that on
20 March 14th, 1995, he was working for Ferrara
21 Brothers a bakery and he was operating --
22 MS. COTTES: I would just object to
23 the extent that he's reading from the
24 document.
25 THE COURT: Yes. Doctor. If you wish

368
2 to remember refresh your recollection. You
3 may do so. Refreshing it and testifying.
4 But, please, don't directly read from
5 that.
6 THE WITNESS: I'm sorry. I didn't
7 realize I was doing that.
8 THE COURT: Okay.
9 A. Okay. He was working for Ferrara Brothers.
10 He was operating a dough mixing machine. The
11 machine apparently malfunctioned. He was
12 attempting to --
14 MS. SCOTTO: Objection to the machine.
15 MS. COTTES: As to the conclusory
16 nature, responsiveness.
17 THE COURT: Yeah.
18 Doctor, just tell us what happened.
19 He had an accident and then what
20 happened, sir?
22 A. As result of the accident, Mr. Rodriguez
23 lost four of his fingers on his right hand.
24 He was treated at Bellevue Hospital,
25 taken directly from the job to the hospital.

369
2 He's had medical treatment over the
3 years. He reports now he still suffers pain.
4 He has little ability to use his right
5 hand. In fact, his whole right arm appears or at
6 least that lower part of his arm appears to have
7 shrunken through lack of use. And as I
8 indicated --
9 MS. COTTES: Objection, to the extent
10 this person's an employability expert, not
11 a medical physician.
12 THE COURT: Doctor, I'm going to ask
13 you, please, let's focus on your
14 expertise. All right, sir.
15 THE WITNESS: Okay, okay.
16 A. He clearly has no ability to use his right
17 hand for work.
18 His physician, treating physician has
19 declared him disabled.
21 THE COURT: That's overruled.
22 A. We then took a look at what Mr. Rodriguez
23 is able to physically do. That is the Department
24 of Labor uses a fancy term Residual functioning
25 Capacity. All that means is that they've divided

370
2 the work force into five different levels of
3 physical exsertion.
4 Q. By the way, doctor, may I interrupt
5 quickly.
6 Did you take into consideration his
7 psychological condition in determining his health,
8 as well?
9 A. I will get to that.
12 Q. I'm sorry. I didn't mean to interrupt.
13 I'm sorry. Just continue.
14 A. The exertional level as defined again by
15 Department of Labor are five in number.
16 Of the lowest exertional level sedentary
17 requires ability to sit for six or eight hours and
18 ability to lift up to ten pounds.
19 The next exertional level is lite. It
20 requires an ability to stand for six or eight
21 hours, ability to frequently lift ten pounds and
22 occasionally lift 20 pounds.
23 The third exertional level is medium
24 exertional level that requires, again, the ability
25 to stand for six or eight hours. The ability to

371
2 frequently lift 25 pounds and occasionally lift 50
3 pounds.
4 Then it goes on to heavy, and then very
5 heavy, okay.
6 The conventional understanding is that a
7 person with use of only one hand is able to do
8 lite or sedentary work. They can't do medium and
9 they certainly can't do heavy or very heavy.
10 So, at this point we're clearly at a
11 level where at best he could do lite exertional
12 level work.
13 We also have to take note of the fact
14 that Mr. Rodriguez indicated that he had both some
15 depression and some anxiety. In fact, panic
16 attacks. And he described these as feeling
17 hopeless, feeling sad, feeling very fearful.
18 He described himself as being on
19 medication for about two weeks the year before.
20 And he indicated that he stopped taking the
21 medication because it was ineffective.
22 So, there was, of course, the ongoing
23 level of depression that was part of his
24 disability.
25 He was then asked what he was physically

372
2 able to do. And I went through a relatively short
3 list of things that he could do. But whether he
4 had any limitations on his ability to walk, stand,
5 lift, stretch, bend or sit.
6 To his credit Mr. Rodriguez was very
7 frank and very honest and he only indicated that
8 he had an ability to lift 50 pounds.
9 He had no limitations in his abilities in
10 any of those other areas that I named.
11 So, what all that means in terms of the
12 conclusion is that he has an ability to do, from
13 my understanding of the Department of Labor
14 standards and of his injury, he had an ability to
15 do sedentary and lite exertional tasks.
16 However, he also -- and that's based on
17 the physical limitations.
18 However, his treating physician is
19 indicating that he is unable to work at all. And
20 so we then have to --
21 MS. COTTES: Objection as to what his
22 treating physician says.
23 THE COURT: Well, did you consult his
24 medical records when you came to your
25 conclusion, sir?
373
2 THE WITNESS: Yes.
4 overruled.
5 Go ahead.
6 A. Okay. We then took a look at Mr.
7 Rodriguez's employment history. And again I think
8 this speaks well for this young man in terms of
9 his ambition.
12 THE COURT: Yes. Sustained.
13 Let's just focus on the facts, doctor.
14 Thank you.
15 A. Okay. Fact number one is that he worked as
16 a stock clerk in an vegetable market for three
17 months of the first year that he arrived. And in
18 that job he routinely lifted 40 pounds, and he
19 earned $180.
20 Using the Department of Labor standards
21 this was unskilled work but it was also heavy.
22 His second job he says he worked for
23 about five months, same year. He was working at a
24 fabric factory. And there he was loading and
25 unloading fabric from a washing machine and he

374
2 frequently lifted 80 pounds and he was making
3 about $220.
4 MS. SCOTTO: Objection, as to the
5 amount.
6 THE COURT: Yeah, let's Mr. -- Doctor
7 Griffith.
9 THE COURT: Let's not go into any
10 numbers. Let's just go into his actual
11 work history.
12 THE WITNESS: Fine, Judge.
13 THE COURT: All right. Thank you.
14 A. That work, again, is described as
15 unskilled and it's very heavy and exertional
16 level. Again, referring back to the exertional
17 levels that I described earlier.
18 His next job was at a restaurant and
19 there he worked as a dishwasher and this was for
20 about three months working part-time 30 hours
21 weekly.
22 And essentially that work was lite, but
23 it did require constant standing and, obviously,
24 use of both hands to load and unload the
25 dishwasher.
375
2 Finally, his last job was with Ferrara
3 Brothers. And there he started as a bakery helper
4 helping to make cannolies.
5 There came a time when he started to work
6 on the baking machine. The mixing machine. It was
7 actually for a very short period because it was on
8 his second day that he was injured.
9 So that essentially represents his work
10 history. Relatively short but the important thing
11 was that it was immediate. He came in 1994 and he
12 worked in 1994.
13 Prior testing. I indicated that an
14 employability expert had seen him -- Mr. Pasutti
15 (ph/sic) -- some years before I had seen him.
16 Part of what he did was to administer the
17 very same test that I administered. It's called a
18 Wide Range Achievement Test.
19 What that test does is give you a rough
20 ability of a person's or a rough assessment of a
21 person's ability to read, write and compute. And
22 we found that Mr. Rodriguez had eight grade
23 reading level. Fifth grade spelling level. Forth
24 grade arithmetic level.
25 Now again this is a person who's ability

376
2 to use English is somewhat questionable. But you
3 might ask, gee, and eight grade reading level
4 that's pretty good. That's sometimes what an
5 average high school graduate would read at.
6 Well, I think I should also say something
7 about how the way the wide range achievement test
8 measures reading.
9 What they do is measure what they call
10 word recognition. If you can pronounce the word,
11 they assume that you can understand it. Not only
12 that pronunciation is almost a subjective
13 interpretation of the person who's administering
14 the test.
15 So if a person has a very heavy accent,
16 technically that person is not presumed to
17 understand the word.
18 On the other hand, if a person is making
19 allowances for the person's accent, then they
20 would base the test upwards by indicating the
21 person actually understands the word that they
22 don't understand. So a possible, possible
23 interpretation of that eight grade reading level
24 is that it may be higher than what Mr. Rodriguez
25 is actually able to understand in English at this

377
2 time. Or at least at that time.
3 So, basically, on the basis of the test
4 scores we're able pretty much to rule out
5 inability to function in a clerical capacity.
6 He has no education. He doesn't have
7 clerical experience. He doesn't have the facility
8 and ability to use English and his arithmetic
9 score was fourth grade.
10 So he's not going to become a bookkeeper
11 any time soon. Okay.
12 So the next question was, all right, how
13 do we put all of that together? That's when we
14 get to what we call the vocational analysis. The
15 vocational -- excuse me. The vocational analysis.
16 This is a bit longer than I usually do in my work.
17 The vocational analysis essentially takes
18 a look -- well, first of all is described by the
19 Department of Labor that basically tells us how to
20 analyze jobs or careers.
21 Essentially it tells us to look at five
22 areas. Intellectual functioning, skill level,
23 experience, physical limitation, psychological
24 limitations.
25 So, intellectually we're able to conclude

378
2 that, well, Mr. Rodriguez has about ten years of
3 education.
4 He has had some vocational training.
5 He's been able to work at some unskilled
6 jobs.
7 It's pretty reasonable to assume that
8 he's able to function at about low average level
9 intellectually. Okay.
10 That means that, well, we'll talk about
11 what that means later. But it's clear that he is
12 not retarded, he's not mentally limited. That's
13 not part of the picture.
14 Skill level. The client has had
15 vocational training. However, it was ten years
16 ago. It was in automobile servicing, and
17 mechanics.
18 Well, for any of us who've driven cars in
19 the last ten years we know that when we open the
20 hood of a car it's not what it used to be. We
21 can't recollect what's there any more. It's
22 computerized. That means that much of what he
23 learned is absolutely useless at this time.
24 So, that training, even if he had had
25 experience since then would be of little use to

379
2 him, and clearly we have to call him unskilled at
3 this time because he simply has not had a relevant
4 vocational training that he is able to use.
5 Experience: I described the jobs. There
6 are all unskilled jobs. They are required lifting
7 or manipulation of his hand. So he has no clerical
8 or technical experience.
9 Physical limitations: Well, again the
10 only limitations that Mr. Rodriguez has is in his
11 ability to lift. More importantly, he has no
12 functional use of his right hand.
13 Now, this really gets him to sedentary
14 and to lite exertional levels for the reasons that
15 I just described.
16 Finally, there's psychological
17 limitations.
18 He described himself as suffering from
19 depression and panic disorders. The symptoms that
20 he described were consistent with that.
21 He presented in addition to that -- as
22 your eyes can see -- with subdued demeanor, sad.
23 He volunteered statements of hopelessness. Flatten
24 affect. He's not a person who smiles a good deal
25 or is very happy about very much.

380
2 And slow thinking. It took him time,
3 more, more time than usual to respond to things.
4 These are all signs of depression. The
5 presence of clinical depression would lessen his
6 ability to attend work processes or to learn new
7 work so that has to be considered, as well.
8 So I, therefore, concluded that --
9 MS. COTTES: I'm going to object,
10 Judge. There's not a question as to
11 conclusions before him.
12 THE COURT: I will allow it.
13 Go ahead.
14 A. As part of my vocational analysis, I
15 concluded that Mr. Rodriguez is a very young
16 immigrant who, again, came to this country to seek
17 opportunity.
18 He worked hard. Including a second job.
19 He attempted to improve his marketability on the
20 job in which he was injured.
21 He became injured in use of his hand and,
22 therefore, his physical ability -- but his
23 physical ability was the only thing that he had to
24 market at the time. So as a consequence of that he
25 became devastated, became depressed and what would

381
2 of become a devastating disability in and of
3 itself was complicated further by the depression.
4 Without these things having happened to
5 him, with him showing the motivation that he did,
6 again 18, new country, different language,
7 different culture, to be able to dutifully take
8 this on by himself chances are no that this would
9 not have been a candidate for the Supreme Court,
10 this young man but he clearly could of become a
11 skilled craftsman. He could have become a truck
12 driver. He could of become a baker.
13 There are several occupations that are
14 likely that he would of been able to learn over
15 the period of time that he was in the country had
16 the injury not happened to him.
17 We next have to take a look at the issue
18 of rehabilitation. Well, as you may know in New
19 Jersey or in New York, the relevant agency is the
20 Office of Vocational Educational Services to
21 Individuals with Disability. VESID.
22 And what they do is essentially provide
23 retraining rehabilitation to individuals whose had
24 disabilities and then in Mr. Rodriguez case he
25 could have been referred by a physician or he

382
2 could of referred himself to the agency.
3 Had he been referred, he would of seen a
4 vocational counselor initially. A counselor would
5 of interviewed him. Chances are they would of
6 found a Spanish speaking counselor, would of
7 interviewed him, would of gone over his history,
8 would of asked for medical documentation, would of
9 perhaps had him examined.
10 On the basis of that, they would of come
11 up with what they call an individual vocational
12 plan. And in this instance what that would mean
13 would be a rehabilitation plan for Mr. Rodriguez.
14 The rehabilitation plan would of included
15 perhaps some more physical therapy. Perhaps
16 another artificial hand prosthetic hand. Perhaps
17 training, more training in English as a second
18 language and perhaps additional vocational
19 training. Perhaps included treatments with a
20 Spanish speaking therapist.
21 Notice I said perhaps. I said perhaps
22 five times. That's a lot of perhapsing and that
23 usually means that when you have to "perhaps" that
24 many times in the rehabilitation plan, it's not
25 very likely to come off. There are just too many

383
2 things to go wrong.
3 So on the basis of that, I concluded that
4 the probability of his success as a rehabilitation
5 candidate was poor.
6 Finally, we arrived at disability. And
7 how do we define disability.
8 Well, as it turns out there are three
9 different ways that we can look at it.
10 The first way is through the Americans
11 with Disabilities Act which actually defines
12 disability.
13 Essentially straight forward, simple any
14 condition that interferes with a person's ability
15 to perform a quote major life role unquote means
16 that they have a disability. No question Mr.
17 Rodriguez meets that definition.
18 Another definition is supplied by the
19 what's called the survey of income program
20 participation data.
21 This essentially is a Department of Labor
22 study that looked at disability. And one of the
23 criteria that they use would be disabled and the
24 other that they used is severely disabled.
25 To be "disabled" you simply have the

384
2 presence of one condition that I just described.
3 To be "severely" disabled, one of the
4 conditions is that you have a second condition.
5 So we notice that the first disability
6 from Mr. Rodriguez is the fact that he doesn't
7 have use of his right hand. But the second
8 disabling condition is the fact that he's
9 clinically depressed. You put those two together
10 and you have severe disability.
11 So now we've met the minimum criteria for
12 the American Disability Acts for Disability.
13 We've met the more stringent criteria that I've
14 just described for severe disability.
15 Less there's still a third way of looking
16 at it. Researchers have taken a look at health
17 information survey data. Essentially, Department
18 of Health and Human Services study and used three
19 categories of disability:
20 Occupationally disabled, moderately
21 disabled and severely disabled.
22 For "occupationally" disabled, we have an
23 individual who has an injury but is still able to
24 perform their work.
25 So typically this might be a secretary

385
2 with perhaps a hearing loss who could use a
3 telephone that has a speaking accommodation.
4 " Moderately" disabled is a person who
5 has a disability or has an injury and is not able
6 to do the same kind of work that they did before
7 but is still able to work. So that might
8 typically be a truck driver who injures his back
9 who has to become a security guard.
10 A final disability is "severely" disabled
11 and this is the individual who is unable to work
12 at any occupation. And that is a condition in
13 which we find Mr. Rodriguez.
14 So what does having a disability mean?
15 Well, actually researchers have looked at that as
16 researchers have looked at everything and one of
17 the things they found is that disability impacts a
18 lot of things.
19 First of all, we found that the disabled
20 get less training than the nondisabled. That it's
21 harder for them to find jobs than the nondisabled.
22 That when employed they are more frequently laid
23 off than the nondisabled. When laid off they
24 remain laid off for longer periods than the
25 nondisabled. And when they're working, they earn

386
2 less than the nondisabled.
3 Further, that there are differences even
4 within disability. That the moderately disabled
5 have less of an affect than the severely disabled.
6 So the severely disabled suffer the
7 greatest impact among those who are already
8 suffering tremendous and severe impacts.
9 So the consequences of all of this and
10 the conclusion of all of this is that disability
11 is a severe life changing event. Okay.
12 Finding: Essentially there are five in
13 number:
14 The first straight up and quite simple is
15 that his education was limited. He had ten years
16 of education.
17 He has had vocational training that's no
18 longer relevant, therefore, he has no marketable
19 skills.
20 Secondly, that he is a Mexican immigrant.
21 He arrived in the country at the age of 18. He
22 spoke no English, little English, and injured
23 himself in a work accident a year later suffering
24 loss of his fingers and his -- in his dominant
25 right hand.
387
2 Thirdly, as a result of that, his
3 physical injury, he's suffering from clinical
4 depression.
5 Depression, he has been unemployed since
6 the accident and he's still a number of years
7 later speaks little English.
8 Fourth, he makes a poor candidate for
9 rehabilitation. Remember that's too many if's.
10 And, finally, he was medically declared
11 to be severely disabled.
12 Accordingly, there is no work, no work in
13 the national economy that he's able to perform.
14 Q. Thank you very much, Doctor Griffith.
15 I'll let you take a break and I'll sit down.
16 Thank you.
17 MS. COTTES: Miss Cottes.
19 BY MS. COTTES:
20 Q. Good morning, doctor.
21 A. Good morning, counsel.
22 Q. You have no personal knowledge of the
23 accident that Mr. Rodriguez presented, correct?
24 A. No.
25 Q. Other than what he told you about the

388
1 DR. GRIFFITH - PLAINTIFF - CROSS/MS. COTTES
2 accident?
3 You wasn't there yourself?
4 A. No, I was not, counsel.
5 Q. You spoke to no one else about it?
6 A. No, counsel.
7 Q. Did he tell you that he was working on a
8 dough mixing machine at the time of the accident?
9 A. Yes.
10 Q. And you don't know where his employer got
11 the mixer, do you?
12 A. No.
13 Q. Now do you know the extent of --
15 All right. Why don't we just move that
16 podium behind counsel table a little bit.
17 Q. You spoke about depression and panic
18 attacks that Mr. Rodriguez told you he has, right?
19 A. That's right, yes.
20 Q. You didn't diagnose them yourself?
21 A. No, I did not.
22 Q. You didn't witness them in your office?
23 A. I did witness depression? Yes.
24 Q. Now, you're a psychologist, right?

389
2 Q. You're not vocational rehabilitation,
3 right?
4 A. I'm counseling psychologist. So
5 vocational work falls within my preview, counsel.
6 Q. Your employability expert work is just
7 one of many things you do right now, correct?
8 A. It's one of a couple of things that I do,
9 yes.
10 Q. Now, are you aware that Mr. Rodriguez has
11 had no psychological treatment?
12 A. Yes, except for the medication, of
13 course. The antidepressant medication that he
14 took briefly.
15 Q. But you don't know of any treatment he's
16 had? He hasn't seen --
17 A. Well, he's clear about the fact that he
18 has received none.
19 Q. He told you that?
21 A. He's clear about the fact that he has not
22 received any.
23 Q. Now, you didn't -- you didn't prescribe
24 any psychiatric drugs for Mr. Rodriguez?
25 A. I cannot prescribe, counselor.

390
2 Q. Now, when you examined Mr. Rodriguez, you
3 did find that he does have some abilities which
4 are unlimited including walking, correct?
5 A. Actually I didn't examine him. I asked
6 him the question and he did respond that these
7 were unlimited. Yes.
8 Q. And by the way, you're meeting with him
9 was one meeting, right?
10 A. That's correct, counselor.
11 Q. And how long was that meeting?
12 A. It was about two hours.
13 Q. Other than those two hours, did you ever
14 meet with Mr. Rodriguez before?
15 A. No, not -- certainly not before.
16 Q. Have you ever spoken to him before that
17 meeting?
18 A. No. Absolutely not.
19 Q. Have you seen or spoken to him since
20 then?
21 A. Just briefly in the hallway today.
22 Q. And you also learned from Mr. Rodriguez
23 that his ability to stand and stretch is
24 unlimited?

391
2 Q. And he can bend and sit in an unlimited
3 way?
4 A. Yes.
5 Q. Now, he can also lift up to 50 pounds?
6 A. Well, that was his statement.
7 Q. Okay, did you --
8 A. Yes.
9 Q. Did you have him try to lift things in
10 your office?
11 A. No.
12 Q. Or do any physical tests?
13 A. No.
14 Q. He told you he can lift about 50 pounds?
16 Q. Now, intellectually you found him to be
17 below average?
18 A. That was a not an assessment. That was a
19 judgment call, yes.
20 Q. And you found that he had no functional
21 command of English, is that right?
22 A. From what I was able to see that's
23 correct. Yes.
24 Limited I believe my word was.
25 Q. Now you talked about his certification as

392
2 a mechanic, is that right?
3 A. Yes.
4 Q. And that was also something you learned
5 from him?
6 A. Yes.
7 Q. And what was the length of his training
8 that he had in auto mechanics?
9 A. He indicated that it was a year,
10 counselor.
11 Q. And he received a certificate at the end
12 of it?
13 A. I believe that is what he said, yes. Yes.
14 Q. So but ultimately you concluded that he
15 has not had enough experience in mechanics to be a
16 mechanic now, is that right?
17 A. He's had none. Yes.
18 Q. And all he had was that one year and in
19 your opinion that wasn't enough for him to work
20 now as a mechanic, is that right?
21 A. Certainly not one year. Ten years ago
22 no.
23 Q. Now you never examined Mr. Rodriguez
24 medically?
25 You only saw him as a psychologist and

393
2 vocational rehabilitationalist; is that right?
3 A. If by exam you mean examine his medical?
4 You mean look at his medical records? I did take
5 a look at the medical records that were presented,
6 the documents that I reviewed prior to seeing Mr.
7 Rodriguez. But no I did not do height, weight that
8 kind of thing.
9 Q. That's what I meant physical examination?
10 A. Okay.
11 Q. And your ultimate conclusions about his
12 severe disability that prevents him from working
13 at anything is based upon your assumption that
14 he's here in the United States legally, right?
16 THE COURT: Sustained. That's
17 stricken. Jury will disregard that.
18 Q. And Mr. Rodriguez was here in the United
19 States approximately one year before the accident.
20 Now you also did conclude that Mr.
21 Rodriguez can do some lite and sedentary work, is
22 that right?
23 A. Well, I said that based on the physical
24 alone that he was able to do that but I'm also
25 deferring to his treating physician who is saying

394
2 that he was unable to work. So I, obviously, have
3 to follow that. Not only that but Mr. Rodriguez
4 has the overlying clinical depression, as well.
5 So that combination in my opinion makes him
6 severely disabled.
7 Q. Okay, but did you say earlier that he can
8 do lite and sedentary work, correct?
9 A. I said that he was physically capable of
10 doing that. I didn't say that he was able to do
11 that. There's a difference.
12 Q. Okay. Are you aware of any efforts Mr.
13 Rodriguez has made even in, you know, the past
14 year to obtain any lite or sedentary work?
15 A. I understand that Mr. Rodriguez has been
16 looking for work but I don't know if any success
17 full attempt that he has made. That is any success
18 that he has had in getting employment.
19 Q. What percentage of the information
20 contained in your report where you testified today
21 which you took from Mr. Rodriguez in the two hours
22 would you say came from Mr. Rodriguez, Rodriguez
23 himself, and wasn't based solely on your
24 examination of him?
25 A. I'm not sure I understand that question,

395
2 counselor.
3 Q. In other words, is it fair to say much of
4 the information contained in your report was
5 information Mr. Rodriguez told you during the two
6 hours you met him?
7 A. Oh, sure. Of course, that doesn't refer
8 to analysis, that only refers to the basic
9 information.
10 Q. Now, you also mentioned that Mr.
11 Rodriguez could of become many professions.
12 Truck driver and several works --
13 A. Yes, I say those are reasonable
14 projections.
15 Q. And would you agree that would be the
16 case if he wanted to be those things?
17 A. Yes, but I would also indicate that given
18 the ambition that he had shown before coming or in
19 coming to the country and beginning work, that it
20 won't be a question of his ambition. He clearly
21 was an ambitious young man.
22 Q. And you know won't that also depend upon
23 whether he qualified for each of the professions
24 you listed if he had the credentials?
25 A. Well, sure. But clearly these were all

396
2 within his ability range.
3 Remember I stated that he probably had
4 low average intelligence. All of these jobs
5 baker, truck driver, some of the other jobs that I
6 listed are all well within his ability range.
7 MS. COTTES: I have nothing else.
8 Q. One other question, doctor.
9 You said the report, you were paid for
10 the report 25 hundred dollars; is that right?
11 A. Yes.
12 Q. How much are you being paid for
13 testifying today?
14 A. I'm paid hourly $250 an hour.
15 Q. And I know you were supposed to testify
16 yesterday. Did you charge for waiting around
17 yesterday?
18 A. I'm afraid so.
19 Q. Now you also testified that you've been
20 testifying as a witness for 20 years?
21 A. Yes.
22 Q. And both for the plaintiff and the
23 defendant, right?
25 Q. And what percentage would you say you

397
2 testify for each?
3 A. I'd have to say that I'm probably more
4 like 70 percent plaintiffs and perhaps 30 percent
5 defendants.
6 Q. Thank you very much.
7 A. Okay. Counsel.
11 BY MS. SCOTTO:
12 Q. Good afternoon, Doctor Griffith.
14 Q. My name is Francine Scotto. I just have
15 a few questions for you.
16 Doctor did you take notes during the
17 exam?
18 A. Yes, I did.
19 Q. Where are they?
20 A. Here in my folder.
21 Q. May I see your folder?
22 A. Sure.
24 gentlemen, why don't we take this
25 opportunity while Miss Scotto reviews that

398
1 DR. GRIFFITH - PLAINTIFF - CROSS/MS. SCOTTO
2 to take a quick rest room break. I'm sure
3 some of you might need it.
4 Just remember if you don't want to
5 wait in line there, you can use the public
6 facilities out on the Grand Concourse side
7 of the building.
8 Again ladies and gentlemen, do not
9 discuss the case.
10 THE COURT: All right every one a
11 quick five minutes.
12 (Whereupon, the court takes a brief
13 recess.
14 Whereupon, the sworn jurors exit the
15 courtroom.)
17 rise.
20 seats.)
22 gentlemen. Have a seat, please. Everyone
23 was able to utilize those five minutes
24 wisely. I'm happy to see that.
25 Miss Scotto, you may proceed.

399
3 CROSS EXAMINATION
4 BY MS. SCOTTO:
5 Q. Doctor Griffith, I'm going to ask to you
6 take a look at your notes.
7 My question is very specific. Where is
8 it in your notes that Mr. Rodriguez told you that
9 he looked for work?
10 A. It may not be here, counselor. At least I
11 don't seem to find it.
12 Q. And, doctor, one other question for you.
13 I ask you to take a look at your report
14 and could you tell me where it says in your report
15 that Mr. Rodriguez told you that he looked for
16 work.
17 Isn't that your report on the floor?
18 A. Just a minute counselor. Here it is.
19 These are additional notes.
20 I, frankly, I didn't even see these
21 before. These are additional notes.
22 On the bottom of the page three, I
23 believe.
24 Q. Doctor, these are notes that you did not
25 give me before?
400
2 A. Yes. Those are additional notes that I
3 didn't realize that I had.
4 Q. And, doctor, can I ask you when you spoke
5 with Mr. Rodriguez you said that there was an
6 interpreter present; is that correct?
7 A. Yes.
8 Q. So you spoke with him with an
9 interpreter, doctor?
11 Q. Did you speak with him in English at all,
12 doctor?
13 A. I spoke in English and I think
14 occasionally Mr. Rodriguez attempted to answer the
15 question before it was translated for him.
16 So to that extent there was little direct
17 communication in English, counselor.
18 Q. Did you ever instruct him to try and
19 answer you in English?
20 A. No.
21 Q. And you only met with him for two hours,
22 is that correct?
24 Q. So you've based -- your opinion as to his
25 ability to speak English is based on that two hour

401
2 period where you had an interpreter present in the
3 room; is that correct?
5 Q. And Doctor Griffith, the plaintiff told
6 you that he drives, right?
7 A. Yes.
8 Q. He did tell you that?
9 A. He also indicate that he has trouble with
10 the gear shift and so that represented a problem
11 for him.
12 Q. But he can drive a manual vehicle?
13 A. He also indicated that that's the gear
14 shift that he has problems with.
15 Q. And, doctor, it's your testimony that
16 he's never had any psychological treatment, is
17 that correct?
18 A. That's correct. None that I know of.
19 Q. Thank you, doctor.
20 A. Okay.
21 THE COURT: Any redirect, Mr. Durst?
22 MR. DURST: Just very briefly, Your
23 Honor.
24 REDIRECT EXAMINATION
25 BY MR. DURST:
402
1 DR. GRIFFITH - PLAINTIFF - REDIRECT
2 Q. Did you get a chance to -- Doctor
3 Griffith, I don't know if you recall, did you get
4 a chance to -- did you get a copy of Mr.
5 Rodriguez's deposition?
6 A. Yes, I did.
7 Q. And do you remember reading in there
8 where he talked about --
10 MS. SCOTTO: Objection as to what the
11 transcript says.
14 Q. Does that refresh your recollection as
15 to --
18 THE COURT: Is there a question, Mr.
19 Durst?
20 MR. DURST: Yes. Yes.
21 Q. Does that refresh --
22 THE COURT: What is the question?
23 Q. Did the fact that you looked at this
24 deposition, did that contain --
25 THE COURT: Mr. Durst, what is your

403
2 question.
3 Q. Did that deposition to your
4 recollection --
5 MS. SCOTTO: Same objection, Your
6 Honor.
8 THE COURT: All right, what is the
9 question that you need for him to refresh?
10 Ask a question without referring to
11 that EBT, please.
12 What is your question?
13 Q. Do you recall anything in the deposition
14 referring to Mr. Rodriguez looking for work?
17 THE COURT: All right, that's -- I
18 will allow that.
19 You said that you reviewed the EBT
20 before you interviewed him?
21 THE WITNESS: I did.
22 THE COURT: All right, so you may
23 answer that question.
24 A. As I recall, I did make note of the fact
25 that he said that he had been looking for work, in

404
2 the interview with me. And he may or may not have
3 referred to looking for work in the deposition.
4 I honestly cannot remember.
5 Q. Okay. Sure.
6 Now, can you tell us why he couldn't be a
7 sales person?
11 sustained.
12 Q. Did you review Doctor Pasque's (ph/sic)
13 report concerning Mr. Rodriguez's --
15 MS. COTTES: Beyond the scope of
16 redirect.
17 THE COURT: Sustained. Sustained.
19 Honor.
20 THE COURT: Nothing further, ladies?
21 MS. SCOTTO: Nothing, Your Honor.
22 Nothing further, Your Honor.
23 MS. COTTES: No.
24 THE COURT: Thank you, doctor. You
25 may step down.

405
1 PROCEEDINGS
2 THE WITNESS: Okay, Judge.
3 (Whereupon, the witness descends the
4 witness stand.)
5 THE COURT: Excuse me. I meant
6 counselors.
7 All right ladies and gentlemen,
8 counsel and the Court will be involving
9 ourselves with legal issues for the
10 balance of the afternoon but I do not
11 believe that will not disturb the schedule
12 that we are projecting for the length of
13 this trial. All right, everyone. Does
14 everyone understand that.
15 We'll be having legal issues for the
16 balance of the afternoon which obviously
17 means that we won't require your presence
18 here in court.
19 We will, however, anticipate an entire
20 full day tomorrow.
21 As I explained to you, I believe at
22 the beginning of this week, Monday
23 mornings I have other matters that I deal
24 with. That is my calendar call is Monday
25 mornings with matters unrelated to the

406
1 PROCEEDINGS
2 trial. So you will not be here Monday
3 morning.
4 However, I will require you to be here
5 Monday afternoon. So, and I anticipate
6 that we should be done by the trial
7 hopefully by next Friday.
8 All right, everyone. So that means for
9 the balance of the afternoon you will be
10 off. It's a horrible thing to do with you
11 guys especially since it's a beautiful day
12 out there, the sun is shining. Some of you
13 might even be able to get up to Rye Beach
14 or Orchard Beach or T.J. Maxx or whatever
15 you like. All right, everyone.
16 So that being said I'm going to ask
17 you now more than every please do not
18 discuss the case amongst yourselves. I
19 know you've heard various witnesses.
20 Please fight the temptation to discuss
21 this case amongst yourselves. Do not
22 discuss it with anyone. Please do not
23 allow anyone to discuss it either with you
24 in your presence. Obviously you will
25 avoid discussions with the attorneys,

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1 PROCEEDINGS
2 parties and witnesses and again you will
3 use every elevator on this floor other
4 than the A bank of elevator to go home and
5 to come back.
6 That being said, as I said tomorrow we
7 anticipate a full day. I am going to ask
8 you please be safe and sound tonight.
9 Don't eat any contaminated food or
10 anything like that. I don't want anyone
11 getting sick to their stomach or anything
12 else. All right. Don't forget your
13 supervised coffee in the morning, one to
14 come over here with and we'll see you
15 tomorrow morning 9 -- let's try all to be
16 here promptly at 9:45, all right everyone.
17 Have an excellent afternoon. I wish I were
18 you this afternoon. And enjoy yourselves
19 this evening and have a good night's rest
20 and back here at 9:45 tomorrow morning.
21 Have a good one, everyone.
22 THE COURT OFFICER: Jury please.
24 courtroom.)
25 THE COURT: All right. We're in

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1 PROCEEDINGS
2 luncheon recess now.
4 May 21st, 9:45 a.m.)
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409
2 COUNTY OF BRONX : CIVIL TERM : IA-22
3 -----------------------------------------x
CIRRO RODRIGUEZ, : Index:
4 16482/95
Plaintiff(s). :
5
-against- :
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Defendant(s). :
8
-AND-
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THIRD PARTY PLAINTIFF :
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-against- :
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THIRD PARTY DEFENDANT. :
14 -----------------------------------------x
851 Grand Concourse
May 21st, 2004
16
B E F O R E:
Justice & jury.
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410
1 PROCEEDINGS
5 the sworn jury.)
6 THE COURT: We are present in the
7 robing room. All counsel and the Court.
8 MR. DURST: Your Honor, we premarked
9 some exhibits during the -- for use during
10 the plaintiff's deposition and I'm going
11 to be offering them in evidence.
12 They included wage stubs and
13 statements from the Fabriek Factory that
14 he worked at which is Plaintiff's Exhibit
15 Five, for identification.
16 The Ferrara Foods Plaintiff's Exhibit
17 6, for identification. And Flor Delice
18 (ph/sic) Caterer, Ink, Exhibit 7, for
19 identification.
20 And Plaintiff's diplomas that he
21 received, that he talked about in his
22 depositions which are marked 4.
23 There's three diplomas and I guess
24 he'll describe what those are exactly.
25 And then Plaintiff's Exhibit 8, for

411
1 PROCEEDINGS
2 identification, which is the videotape
3 which I showed counsel.
4 And then Exhibit 9 is the prosthesis.
5 So I thought maybe we could save some
6 time by resolving any objections there
7 were to them.
8 THE COURT: Counsel.
9 MS. COTTES: The prosthesis I don't
10 have an objection to.
11 The inspection video to the extent
12 plaintiff can lay a foundation, I
13 shouldn't have an objection to.
14 I do object to the pay stubs to the
15 extent they contain a social security
16 number which is an invalid social security
17 number.
18 THE COURT: Well, in any case where
19 there are social security numbers,
20 regardless of whether they're valid or not
21 valid, that always gets redacted. Even in
22 hospital records.
23 MS. COTTES: But in this instance --
24 THE COURT: Social security numbers,
25 any phone numbers that kind of thing gets

412
1 PROCEEDINGS
2 redacted.
3 MS. COTTES: In this instance, it will
4 be apparent to the jury by its position on
5 those stubs that it will appear to them
6 that he has a valid social security number
7 and we know and --
8 THE COURT: We are redacting the
9 social security number. Period. That goes
10 without saying.
11 We are redacting the social security
12 number.
13 MS. COTTES: And the word social
14 security number above it? To show that?
15 THE COURT: We are redacting the
16 number. All right.
17 Anything else?
18 MS. SCOTTO: Are you done?
19 MS. COTTES: Um hum.
21 objection to the diplomas.
22 MS. COTTES: I concur in that. The
23 diplomas.
24 MS. SCOTTO: They're not written in
25 English. They're in Spanish.

413
1 PROCEEDINGS
2 I have no objection to the prosthesis.
3 I have an objection to the video. I
4 don't know if defense counsel can lay the
5 foundation.
6 The video does not depict the way the
7 machine appeared on the date of
8 occurrence.
9 And I also have the problem with the
10 pay stubs that they show the social
11 security number and that the slot will be
12 there for social security number and the
13 jurors will believe that he has a valid
14 social security number when we all know
15 that he does not.
16 THE COURT: Again the social security
17 number is always redacted from any
18 document that the jurors get be they
19 hospital records, pay stubs any documents
20 that jurors get will have that redacted,
21 and a phone number redacted so they will
22 not speculate with regard to any of that.
23 With regard to the video of the
24 machine, assuming that Mr. Durst can lay a
25 foundation, there is no reason for us not

414
1 PROCEEDINGS
2 to receive that into evidence because
3 based on the conversation that we had
4 yesterday in chambers when we were viewing
5 the EBT of Mr. Rogel with a view towards
6 utilizing the video, counsel, both of you,
7 informed me that there was no subsequent
8 repair issue because what the witness had
9 utilized in the video those being
10 photographs of the machine included
11 photographs of the safety gate, the
12 tilting switch. I think those were the
13 two that had been at issue before when the
14 Court first viewed the video that is now
15 being proffered by Mr. Durst.
16 It became apparent, and I do believe
17 both of you conceded that these safety
18 devices were in place at some point before
19 the accident and were again in place at
20 some point after the accident. So this is
21 no longer in the nature of a subsequent
22 repair.
23 So I will allow Mr. Durst, if he lays
24 the foundation, to allow that video into
25 evidence because we are no longer dealing

415
1 PROCEEDINGS
2 with an issue of subsequent repair.
3 MS. SCOTTO: Your Honor, my objection
4 is not only a subsequent repair. My
5 objection is also that it does not depict
6 the machine on the way it appeared on the
7 date of the occurrence.
8 THE COURT: Well, is that what you're
9 looking to do, Mr. Durst?
10 MR. DURST: No. We're showing it the
11 way it was before the occurrence, and to
12 show that the safety gate had been removed
13 even though it was there before the
14 occurrence which contributed to the
15 circumstances of the accident, and to show
16 that the tilting mechanism was not
17 functioning even though it had been before
18 the accident and that contributed to the
19 occurrence.
20 MS. COTTES: And I assume your witness
21 will be able to clarify that as you
22 question him ?
23 MR. DURST: Absolutely. He will
24 clarify that the safety gate was not
25 present at the time of the occurrence and

416
1 PROCEEDINGS
2 that the tilting mechanism was not
3 functioning at the time of the occurrence.
5 MR. DURST: Your Honor, I am just
6 wondering with regard to --
7 THE COURT: All right, just with
8 regard to the diplomas.
9 Can I see those?
11 THE COURT: All right, Miss Scotto.
12 So you're only objection is that this is,
13 in fact, in Spanish and not in English, is
14 that it?
15 MS. SCOTTO: Yes.
16 MS. COTTES: I have the same
17 objection.
18 THE COURT: All right. Mr. Durst?
19 MR. DURST: Well, they're the original
20 diplomas which were issued in Spanish when
21 he was in Mexico. So, there's no other
22 possible evidence. A translations of them
23 I guess could be provided if necessary but
24 the witness would testify as to what the
25 documents are and what they're diplomas

417
1 PROCEEDINGS
2 for.
3 THE COURT: All right, I am going to
4 allow, if the plaintiff or I assume it's
5 going to be the plaintiff, can explain
6 what these are, I will allow them to go in
7 and clearly on the face of all of these
8 three documents is the word di-plo-ma
9 which is diploma in Spanish and it's
10 di-plo-ma in English. So I think the
11 jury, notwithstanding that it is in a
12 different language, would not understand
13 that it's three diplomas, to the extent
14 that he explains what they are, perhaps we
15 can use the services of the Spanish
16 language interpreter to essentially state
17 what is said on the face of these diplomas
18 that would cure any defect that we might
19 have.
20 All right, so that being the case
21 would you oppose the introduction of these
22 into evidence for I guess it will be A, B,
23 and C?
24 MS. SCOTTO: I do oppose.
25 MS. COTTES: Over objection.

418
1 PROCEEDINGS
2 THE COURT: What would be the other
3 objection other than the language?
4 MS. SCOTTO: That is my problem,
5 Judge. That they are written in Spanish.
6 THE COURT: But did you just
7 understand that I indicated that perhaps
8 what we might be able to do is utilize the
9 Spanish language interpreter to translate
10 what's contained in those diplomas?
11 Again, clearly on the face of all
12 three of these documents is the word
13 di-plo-ma that need no translation.
14 MS. SCOTTO: I understand that, Judge.
15 I still have an objection.
16 THE COURT: All right, that objection
17 will be overruled.
18 MS. COTTES: Just note my objection,
19 as well.
20 MS. COTTES: Off the record, Judge.
21 THE COURT: In the robing room on the
22 record.
23 Okay, we are in the robing room
24 outside the hearing of the jurors.
25 All counsel, the Court, the official

419
1 PROCEEDINGS
2 Spanish interpreter and the plaintiff.
3 At this point Mr. Durst what are you
4 looking to do?
5 MR. DURST: I'd like to lay the
6 foundation, Your Honor, outside the
7 hearing of the jury for the playing of
8 video just to expedite matters and I'd
9 like to do that through Mr. Rodriguez who
10 is present.
11 Well, I believe -- may I proceed, Your
12 Honor?
13 THE COURT: Yes. All right, Mr.
14 Rodriguez. Swear in Mr. Rodriguez.
15 THE COURT OFFICER: Mr. Rodriguez will
16 you please rise your right hand, please.
21 THE COURT OFFICER: Please be seated.
22 MR. DURST: Mr. Rodriguez there was a
23 time that you went to the factory with a
24 Mr. Burson and Vanessa Mangel and a video
25 tape was taken of the machine in question.

420
1 PROCEEDINGS
2 Correct?
3 MR. RODRIGUEZ: Yes.
4 MR. DURST: And the machine at the time
5 had a safety gate over it whenever the
6 video was taken?
8 object to the leading nature.
10 MR. DURST: Well, I'm asking -- going
11 to ask you to take a look at this video.
12 THE COURT: All right let's set a time
13 frame, Mr. Durst, all right.
14 MR. DURST: Sure.
15 Prior to the accident--
16 THE COURT: With regard to the video.
17 Let's set a time frame with regard to the
18 video, all right.
19 MR. DURST: Do you remember when that
20 video was taken?
21 MR. RODRIGUEZ: No.
22 MR. DURST: Was it approximately five
23 months after the accident ?

421
1 PROCEEDINGS
2 MR. DURST: Preliminary matter, Your
3 Honor.
4 THE COURT: I'll allow it.
5 MR. RODRIGUEZ: I'm not sure but I
6 think so.
7 MR. DURST: All right. All right and
8 have I shown you the videotape that was
9 taken at the time?
11 MR. DURST: Your Honor, I'd like to
12 play the video for him now.
14 MS. COTTES: Insufficient foundation.
15 MS. SCOTTO: Same objection.
16 MS. COTTES: Over objection.
17 THE COURT: Let's hear a little more,
18 all right.
19 MR. DURST: Did the video fairly and
20 accurately depict the way the machine was
21 before the accident?
22 Not at the very time of the accident
23 but while you work at Ferrara?
24 MS. COTTES: Objection. Insufficient
25 foundation.
422
1 PROCEEDINGS
2 THE COURT: Let's do a little more
3 foundation work, Mr. Durst, before you get
4 to the video. All right.
5 MR. DURST: All right.
6 You are familiar with the subject of
7 the videotape?
9 MR. DURST: And you're familiar with
10 the way the machine looked before the
11 accident?
13 MR. DURST: I'm not sure what else
14 you might be looking for, Your Honor.
15 May I show the videotape to him now
16 and ask him if it fairly, accurately
17 depicts the way the machine was before the
18 accident?
19 THE COURT: He was present on the date
20 that it was videotaped, right?
21 MR. DURST: You were present at the
22 time that it was video taped?
24 MS. COTTES: Objection. I would just
25 ask that the witness clarify who took the

423
1 PROCEEDINGS
2 video, was anyone else present, who else
3 was there before actually getting into
4 what is in the video.
5 THE COURT: Okay. Mr. Durst, direct
6 questions.
7 MR. DURST: Who else was there at the
8 time?
9 THE COURT: Just direct questions as
10 to what happened before taking the video.
11 Let's get that out, all right.
12 MR. DURST: Did you --
13 THE COURT: Direct questions. Who,
14 what, where, and why?
15 MR. DURST: Okay.
16 Who was there with you at the time?
17 MR. RODRIGUEZ: My attorney, a lady
18 named Vanessa, and I believe another
19 attorney.
20 MR. DURST: And did you identify the
21 machine that was involved in your accident
22 to those people?
24 MR. DURST: And was it the only dough
25 mixer of that type at that location?

424
1 PROCEEDINGS
3 MR. DURST: And then did you observe
4 the video being made of the machine?
6 MR. DURST: May I show him the video
7 now?
8 THE COURT: Okay.
9 MR. DURST: Mr. Rodriguez, if you could
10 look at the video here.
11 Your Honor, I think it's about a
12 minimum 40 seconds.
13 Now Mr. Rodriguez does that fairly and
14 accurately depict the way the machine
15 looked at sometime prior to the accident?
16 Not necessarily at the very time of
17 your accident but at a time of your
18 accident when you worked?
19 THE COURT INTERPRETER: Counsel, you
20 have to give me a chance.
21 MR. DURST: Sorry.
22 Does that fairly and accurately show
23 the way the machine was at some time prior
24 to your accident?
25 MR. RODRIGUEZ: I didn't understand the

425
1 PROCEEDINGS
2 question.
3 MR. DURST: Is that a fair picture of
4 the way the machine looked at sometime
5 before the accident?
7 MR. DURST: That's it, Your Honor.
8 THE COURT: Counsel. Anything from
9 you with regard to the foundation?
10 MS. COTTES: Mr. Rodriguez, when you
11 were present at that inspection, had you
12 seen the machine prior to that inspection?
14 MS. COTTES: That inspection was the
15 first day you saw that machine?
16 MR. RODRIGUEZ: Uhm, now I recall that
17 I had gone before. I didn't go to see the
18 machine, I went to do something else.
19 Take something else but I don't recall.
20 MR. DURST: He's talking about after
21 the accident.
22 MS. COTTES: Before that inspection
23 that's on the video, were you aware that
24 that machine was in that place?
25 MR. RODRIGUEZ: Before the accident?

426
1 PROCEEDINGS
2 MS. COTTES: Yes.
3 MR. RODRIGUEZ: No, it wasn't there.
4 MS. COTTES: Before the video?
5 Before the inspection?
7 MS. COTTES: Did your accident happen
8 before or after the time of this
9 inspection was done?
10 MR. RODRIGUEZ: Before.
11 MS. COTTES: And had you seen that
12 machine that's in the video before the
13 inspection that's in the video?
14 MR. RODRIGUEZ: Yes, but I didn't see
15 the machine. I didn't look at the
16 machine. I went for something else.
17 THE COURT: All right, counsel, I'm
18 going to ask you to clarify that question.
19 I don't think he understands.
20 MS. COTTES: What was the something
21 else that you went for?
22 What do you mean?
23 MR. RODRIGUEZ: I think I went to take
24 a check that they owed me.
25 MS. COTTES: Had you ever worked on the

427
1 PROCEEDINGS
2 machine that was depicted in the video.
3 MR. RODRIGUEZ: Yes, I had the accident
4 with that machine.
5 MS. COTTES: And at the time of the
6 accident with that machine who were you
7 working for?
8 MR. RODRIGUEZ: Ferrara.
9 MS. COTTES: And how long had you been
10 working for Ferrara at the time of your
11 accident?
12 MR. RODRIGUEZ: Four, five months.
13 MS. COTTES: And when you answered Mr.
14 Durst's question as to whether the machine
15 shown in the videotape was a fair and
16 accurate depiction of the machine time
17 prior to the accident, did the machine in
18 the video actually look different from the
19 day of the accident?
20 THE COURT: All right, those are two
21 questions. Which one are you asking?
22 MS. COTTES: Let me ask it this way.
23 Did the machine depicted in the
24 videotape inspection look different than
25 it appeared on the day of your accident.

428
1 PROCEEDINGS
2 THE COURT INTERPRETER: Sorry, you
3 have to break it up. Say it again.
4 MS. COTTES: Did the machine that's
5 depicted in the video appear different on
6 the day of your accident than it does in
7 the video?
9 MS. COTTES: And how is it different?
10 MR. RODRIGUEZ: It wasn't turning back
11 downward.
12 It didn't have the gate that was on
13 top.
14 MS. COTTES: Anything else?
15 MR. RODRIGUEZ: They changed some gage
16 to make it go down.
17 It had a lever that was changed.
18 MS. COTTES: Okay and those differences
19 were present on the machine at the time of
20 your accident?
21 THE COURT: All right Miss Cottes this
22 is foundation.
23 Do you have any --
24 MS. COTTES: That's really the last
25 question, Judge.
429
1 PROCEEDINGS
2 THE COURT: Just foundation questions
3 with regard to the video. Not anything
4 else.
5 MS. COTTES: No, this was the last
6 question.
7 THE COURT: Just with regard to the
8 video.
9 THE COURT INTERPRETER: Ask the
10 question again.
11 THE COURT: No.
12 THE COURT INTERPRETER: No.
13 THE COURT: No.
14 Okay, is there anything further from
15 anyone with regard to foundation?
16 MS. SCOTTO: I don't have any
17 additional.
18 THE COURT: I mean it's Mr. Durst's
19 foundation.
20 Anything further from anyone with
21 regard to foundation?
22 MS. COTTES: No.
23 MS. SCOTTO: No.
24 MR. DURST: No, Your Honor.
25 THE COURT: All right, I'll hear you

430
1 PROCEEDINGS
2 with regard to the film then.
3 MR. DURST: Well, Your Honor, the
4 safety gate was on before the accident.
5 Then it was taken off prior to the
6 accident.
7 The machine was tilting before the
8 accident, and then the tilting mechanism
9 broke before the accident and they weren't
10 using it at the time he was injured. And
11 the question of whether there's a lever or
12 not --
13 THE COURT: Okay, I'm referring to the
14 foundation for the introduction of the
15 video into evidence, Mr. Durst, not what's
16 contained in the video itself.
17 MR. DURST: Well, I think he fairly
18 and accurately -- I mean he accurately --
19 he testified to fair and accurate
20 depiction to the machine before the
21 accident while he worked there, and he
22 will testify that the -- I mean I just am
23 at a lost for other words.
24 THE COURT: Miss Cottes? Miss Scotto?
25 MS. COTTES: I have no objection at

431
1 PROCEEDINGS
2 this time.
3 MS. SCOTTO: Not an objection with
4 respect to foundation. Just the
5 objections I raised earlier.
6 THE COURT: If there are no objections
7 from you with regard to foundation, then
8 let's proceed then.
12 THE COURT OFFICER: All rise, jurors
13 entering.
16 seats.)
18 gentlemen.
20 THE COURT: Have a seat. You see, you
21 guys are really warming up to each other.
22 Am I right? How many phones numbers have
23 been exchanged thus far? None? Not yet.
24 I know, I know. Soon.

432
1 C. RODRIGUEZ - PLAINTIFF - DIRECT
2 Thank you again for bearing with us
3 because we were doing -- tending to some
4 legal issues in the robing room and, of
5 course, I'd rather have you in the jury
6 room engaging with each other, playing
7 cards, sharing stories or whatever it is
8 you guys do back there. And at this point
9 we're ready to proceed.
10 I believe that we probably will only
11 have one witness today. We thought we
12 would have two but it seems we're only
13 going to have one.
14 We're still going to be on track with
15 the trial, all right. If all is right with
16 the world, okay, hopefully we'll still be
17 on track.
18 And without any further delay, Mr.
19 Durst, do you have a witness to call?
20 MR. DURST: Yes, Your Honor. I call
21 Cirro Rodriguez.
22 THE COURT CLERK: Sir, raise your
23 right hand.

433
3 THE WITNESS: Yes.
4 THE COURT CLERK: State your name and
5 address, in a clear voice, please.
6 THE WITNESS: Cirro Rodriguez. 250
7 Washington Avenue, apartment D1. Brooklyn,
8 New York.
9 THE COURT: Okay. Good morning, Mr.
10 Rodriguez.
11 THE WITNESS: Good morning.
12 THE COURT: All right Mr. Rodriguez,
13 first of all I'm going to ask you, sir, to
14 speak nice and loudly, clearly, and
15 slowly.
16 And while, first of all ladies and
17 gentlemen of the jury in the box, how many
18 of you, if you would raise your hand,
19 speak and understand Spanish?
20 No one raising their hand. This
21 should not come as any difficulty, but we
22 are utilizing the services of the official
23 court interpreter and her translation or
24 her interpretation of what is said is what
25 governs. This should not be an obstacle

434
2 since based on your reception none of you
3 speak or understand Spanish.
4 Mr. Rodriguez, nonetheless, I'm going
5 to ask you to speak up nice and loudly,
6 clearly, and slowly because the Court does
7 speak and understand Spanish and I want to
8 make sure that I'm hearing what you're
9 saying, as well.
10 All right, sir, do you understand
11 that?
13 THE COURT: And also, sir, I know that
14 ordinarily it's a custom to look at the
15 person with whom one is apparently
16 speaking, but in this instance, sir, you
17 are going to be directing your answers at
18 the attorney who is posing a question and
19 not at the interpreter.
20 So, please, sir, I'm going to ask you
21 to direct your responses at the attorney
22 at the back of the room who is asking the
23 questions.
24 Now, if you don't understand a
25 question, you will say to the attorney and

435
1 MR. RODRIGUEZ - PLAINTIFF - DIRECT
2 not the interpreter, that you do not
3 understand the question, or where that you
4 did not hear the question. All right, sir?
5 THE WITNESS: Yes.
6 THE COURT: In other words, you're
7 not to engage in conversation with the
8 interpreter. You understand that, sir?
9 THE WITNESS: Yes.
10 THE COURT: Okay, thank you very much.
11 You may inquire.
14 BY MR. DURST:
15 Q. Good morning, Mr. Rodriguez.
16 A. Good morning.
17 Q. Do you remember the day of your accident?
18 A. 3/14/95.
19 THE COURT: Again, Mr. Rodriguez, I
20 need you to speak up nice and loud so that
21 I can hear you in the Spanish language.
22 All right, sir?
24 THE COURT: Okay.
25 A. 3/14/95.
436
2 Q. Okay, where do you currently live?
3 A. With my uncle at 250 Washington Avenue.
4 Q. How long have you lived there?
5 A. Since I had the accident. Since I came
6 here.
7 THE COURT: All right, just one
8 second, Mr. Durst. I'm going to ask you
9 to stand behind the podium, please.
10 You have written documents that I
11 don't want the jury to see in your hand,
12 all right.
13 Q. Okay, are you married?
14 A. No.
15 Q. Have you ever been married?
16 A. No.
17 Q. Do you have any children?
18 A. No.
19 Q. Are you able to speak English?
20 A. Little.
21 Q. Okay, are you able to read English?
22 A. A little.
23 Q. What is your date of birth?
24 A. June 16th, 1976.
25 Q. Where were you born?

437
2 A. Puebla Mexico.
3 Q. How many children are in your family?
4 A. Myself and three brothers.
5 Q. What are the ages of your brothers and
6 sisters. Your brother?
7 A. It's two a sister and brother.
8 THE COURT: Again, Mr. Rodriguez, you
9 need to speak up a little louder and
10 direct your view to the attorney, okay.
11 A. I don't remember the ages. One is 25 --
12 I'm not sure. The other one female 23, and my
13 brother's 21.
14 Q. And how old are you now?
15 A. 27.
16 Q. So you're the oldest of the children?
17 A. Yes.
18 Q. Now tell us a little bit about what your
19 father did for a living down in Mexico?
20 A. He has a farm in the country.
21 Agricultural, things like that.
22 Q. Did you work with him on the farm when
23 you were growing up?
24 A. Yes.
25 Q. And describe for us what schooling you

438
2 had down there in Mexico?
3 What formal schooling you had?
4 A. I finished primary and secondary and I
5 had five months at a technical school. Then I
6 studied mechanics for a year.
7 Q. So how many years did you go to school
8 before you went off to study mechanics?
9 How many years did you actually attend
10 school?
11 A. Nine and a half.
12 Q. How old were you when you finished
13 school before going and studying auto mechanics?
14 A. 14, 15 years.
15 Q. And then I'm going to show you, Mr.
16 Rodriguez, what has been admitted as Plaintiff's
17 Exhibit Four and ask you to describe what those
18 are?
19 A. These are the diplomas I received stating
20 that I finished the course. The three courses in
21 one year.
22 Q. Well, describe what each diploma says?
23 What each diploma was given to you -- to
24 you for?
25 THE COURT: Let's just why don't we

439
2 marked them A, B, and C.
3 And he can refer to them individually,
4 all right.
6 previously Plaintiff's Exhibits 4A, 4B,
7 and 4C was marked for identification.)
8 THE COURT OFFICER: Marked 4A, 4B, 4C
9 so marked.
11 gentlemen, when counsel and the Court were
12 engaged in the robing room certain items
13 were stipulated and agreed to or were
14 received in evidence out of your hearing
15 so these items have been received in
16 evidence out of your hearing. All right,
19 previously Plaintiff's Exhibit 4A, 4B, 4C
20 was received in evidence.)
21 Q. So describe what each one of those
22 diplomas was issued to you for?
23 A. Preventive maintenance for vehicles.
24 THE COURT: That's A? That was A,
25 right?
440
2 All right, let's just do it in order.
3 Is that B that you have? The first
4 one?
5 THE WITNESS: Yes.
6 Q. What was Exhibit 4B given to you for?
7 A. Brake suspension and direction. Brakes.
8 Q. Okay, and how about Exhibit 4C?
9 A. Uhm --
10 THE COURT: All right Mr. Rodriguez I
11 can't hear you and I think the Court
12 interpreter is also saying she cannot hear
13 you.
14 A. Repair of gasoline engines.
15 MR. DURST: May we published those to
16 the jury at this time, Your Honor?
17 Just pass them around.
18 THE COURT: Mr. Durst, let's do what we
19 had agreed to do before we pass them to
20 the jury for the record.
21 Why don't we have -- let's do what we
22 were going to do before for the record.
23 MR. DURST: Have her translate them
24 or?
25 We don't need to do that. I'll

441
2 withdraw that question. I'm not sure what
3 you're referring to.
4 THE COURT: Let's give those back to
5 the plaintiff.
6 These are in evidence. Let's start
7 with 4A, Mr. Durst.
8 MR. DURST: I think he described what
9 they --
10 THE COURT: Mr. Durst, that's A, in
11 Spanish. We have the interpreter here. Do
12 you have any questions for the plaintiff?
13 MR. DURST: Not with regard to the
14 diplomas any further.
15 THE COURT: Side-bar, please.
19 plaintiff and sworn jurors.)
20 THE COURT: Okay, Mr. Durst. I guess
21 you're having a senior moment here. It
22 happens to the best of us. Me especially
23 these days. It's a terrible thing.
24 Mr. Durst, as we discussed in the
25 robing room, that document is in Spanish.

442
2 As you saw none of the jurors speak, read
3 or understand Spanish. So I thought we
4 understood that we were going to utilize
5 the services of the interpreter to
6 translate, so if they need to have a read
7 back that document -- those documents,
8 that are in evidence, will be understood
9 by the jurors. Because, obviously, you
10 didn't see the need to have that document
11 or those three documents translated from
12 Spanish to English. And there would never
13 be a situation where the jurors will use
14 their expertise with regard to a language
15 other than English in the jury room.
16 So, do you now understand what you
17 need to do with the plaintiff with regard
18 to those three documents ?
19 MR. DURST: One word suffices.
20 THE COURT: Well, I'm not sure
21 sometimes 2 or 3 seem to.
25 MR. DURST: Your Honor, can I -- could

443
2 I ask that the documents be translated by
3 the interpreter?
4 THE COURT: Your -- the plaintiff is
5 going to read the documents, is that what
6 you're saying?
7 MR. DURST: No, by the interpreter.
8 Oh, you want him to read the documents
9 and have her interpret it?
10 I'm just not sure what your procedure
11 is but whatever it is, I would do it.
12 THE COURT: Then start with number 4A.
13 What is that document, again?
14 THE WITNESS: Preventative Vehicle
15 Maintenance.
16 THE COURT: All right, Mr. Rodriguez.
17 Again, you're going to have to speak up
18 loud so that the interpreter can hear what
19 you're saying.
20 Next question.
21 MR. DURST: I'm just going to pass over
22 the diplomas. I don't want him to read the
23 whole thing to them and have her interpret
24 it. Unless you want me to, I will do that.
25 Q. Mr. Rodriguez, what was 4B?

444
2 I mean you've already told us what 4B
3 was. You told us what 4C was?
4 A. Suspension.
5 THE COURT: All right, counsel, let's
6 go into the robing room with the
7 plaintiff. Excuse me, not plaintiff.
8 Counsel and the reporter.
12 the sworn jury.)
13 THE COURT: All right, Mr. Durst,
14 let's make one thing clear. I'm not here
15 to help you try your case. I thought I was
16 giving you some direction with regards to
17 the filing of these three items that were
18 received in evidence in that they are in
19 the Spanish language.
20 These documents don't get received
21 into evidence because the jurors don't
22 understand what is written in these
23 documents. How are the jurors going to be
24 able to assess that.
25 I initially indicated I overruled Miss

445
2 Scotto's objection because they were in
3 the Spanish language indicating that they
4 had diploma written on there and that
5 diploma is written in the same way Spanish
6 or English.
7 Now I've given you a little leeway to
8 try to understand that the only way the
9 jurors can understand it is if it is in
10 English. You've chosen not to do that, all
11 right. I gave you several opportunities.
12 MR. DURST: Your Honor, I just don't
13 know the procedure, what you want me to
14 do. Whether you want her to translate
15 them? For him to read them?
16 THE COURT: Mr. Durst, I don't think I
17 could have been clearer.
18 Do you have a motion?
19 MS. SCOTTO: Yes, Your Honor, I have
20 an application to have those items removed
21 from evidence and to have the testimony
22 stricken.
23 MS. COTTES: I would concur in that.
24 THE COURT: At this time I'm granting
25 that application.
446
2 You don't understand what I'm saying
3 to you, Mr. Durst. I'm not trying your
4 case. Simple as that.
5 Let's go.
6 MR. DURST: Your Honor, I just --
7 THE COURT: Let's go.
8 MR. DURST: That's --
9 THE COURT: That's what ?
10 MR. DURST: That's just so hash.
11 THE COURT: Mr. Durst, ladies -- wait,
12 counsel.
13 As I said Mr. Durst --
14 MR. DURST: That's extreme, you know.
15 THE COURT: Mr. Durst, I've been
16 trying to be of assistance to all counsel.
17 MR. DURST: Well, if you tell me what
18 you want me to do I would do.
19 THE COURT: Mr. Durst I don't know how
20 many times and how clear I can get without
21 doing it myself.
22 MR. DURST: All I'm saying, do you
23 want him to read it and her to translate
24 it.
25 THE COURT: Mr. Durst, you had your

447
2 opportunity twice. At this point they're
3 coming out of evidence.
4 MR. DURST: Oh, gosh.
8 THE COURT: Is there an application?
10 application to have the diplomas which are
11 marked as Plaintiff's Exhibit four A, B, &
12 C removed from evidence and to strike the
13 plaintiff's testimony concerning those
14 documents as well as the expert's
15 testimony regarding diplomas.
16 MS. COTTES: I would concur in that
17 application.
19 the withdrawal of Four A, B, and C to the
20 extent that these documents are in Spanish
21 from the Spanish language, that none of
22 the ladies and gentleman of the jury speak
23 or understand Spanish, but more
24 importantly because even if you did speak
25 and understand Spanish, you could not

448
2 utilize your understanding of the Spanish
3 language in place, instead of the official
4 court interpreter and to the extent that
5 these documents, before being offered into
6 evidence were not translated into English
7 for you to understand what is contained
8 therein and because there has been no
9 attempt to translate them for you here in
10 the courtroom, at this juncture that
11 application is granted with regard to
12 striking.
13 With regard to striking testimony with
14 regard to the documents themselves, it is
15 for you to decide, based on the
16 plaintiff's testimony, as to whether he,
17 in fact, attended the schools that he did
18 absent any documentary proof.
19 So the documentary proof is removed
20 from your consideration but, otherwise,
21 you are free to decide whether he did or
22 did not attend any schooling wherein he
23 took courses for auto repair. That's for
24 the jury's determination notwithstanding
25 the fact that documentary proof has been

449
2 removed from your consideration because of
3 the deficiencies.
4 Let's proceed. Next question.
6 BY MR. DURST:
7 Q. Did you work in Mexico before coming to
8 the United States?
9 A. With my father.
10 Q. And what was that doing (sic)?
11 A. Helping him in the property and the farm.
12 Q. Did you ever work with any machinery like
13 dough mixers in Mexico?
14 A. No.
15 Q. When did you first come to the United
16 States?
17 A. I don't recall the date but I believe it
18 was 1994.
19 Q. And where did you live when you first
20 came to the United States?
21 A. With another uncle that lived at 260
22 Washington Avenue, in Brooklyn, New York.
23 Q. Since coming to the United States, have
24 you taken any courses in any schools?
25 A. No.
450
2 Q. Had you taken any classes in English?
3 A. No.
4 Q. What is your uncle's name?
5 A. The one I lived with first?
6 Q. Yes?
7 A. Maurilo, M-A-U-R-I-L-O. Osorio (ph).
8 Q. Did you have another uncle that lives
9 near him?
10 A. Yes.
11 Q. What is his name?
12 A. Jose Osorio.
13 Q. Where was the first place you went to
14 work when you came here to the United States?
15 A. It was in a fruit and vegetable stand.
16 Q. And what did you do at the fruit and
17 vegetable stand?
18 A. Picking fruit, selecting fruits. The
19 ones that were no good I would throw them out.
20 Q. How long did you do that?
21 A. And unloading trailers.
22 Q. How long did you do that?
23 A. I believe one month.
24 Q. What did you do next for work?
25 A. Factory where they colored or painted

451
2 cloth, textiles.
3 Q. And what did you do at that job?
4 A. Large machines. We would have to remove
5 large cloth fabrics, sacks and put these in a
6 large container and take these to be rung out.
7 Q. How many hours did you work at the
8 factory?
9 A. If there was a lot of work 12 hours.
10 Sometimes 10.
11 Q. And how many days per week?
12 A. If there was a lot of work six. If not
13 five.
14 Q. Did you retain -- did you keep your pay
15 stub from that job?
16 A. Yes.
17 MR. DURST: Your Honor, may I
18 approach and --
19 THE COURT: Give it to the officer.
20 MR. DURST: Sure.
21 THE COURT: Likewise ladies and
22 gentlemen, these were previously marked
23 out of your hearing and received in
24 evidence. That's Plaintiff's Number 5, in
25 evidence.
452
2 MR. DURST: May I proceed, Your Honor?
3 THE COURT: Yes.
4 Q. Are those all the pay stubs that you had
5 for the factory?
6 The fabric factory that you worked at?
7 A. They're not all of them.
8 Q. There are some that you didn't keep?
9 A. Yes.
10 Q. And what were you paid per hour at the
11 fabric factory?
12 A. $4.25.
13 Q. How long did you work at the fabric
14 factory?
15 A. Nine months.
16 Q. And did you work every week there during
17 that nine month period?
18 A. Yes.
19 Q. And now when you worked there, did you
20 work with -- well, what kind of machinery did you
21 work with?
22 A. The dryer, the machines that rung out the
23 fabric.
24 Q. When you left there, what did do you
25 next?
453
2 A. I had that job but I also had a part-time
3 job at --
4 Q. What was the job?
5 A. -- a restaurant.
6 Q. What did do you at the restaurant?
7 A. I would put plates in order. In place.
8 THE COURT: I'm sorry, you would do
9 what when you were at that job?
10 Mr. Rodriguez, you really need to
11 speak up much louder. I don't think the
12 interpreter is getting everything that
13 you're saying. So much louder. Way to the
14 back, okay. Pretend you're playing
15 volleyball or something and you're
16 shouting at the person all the way at the
17 wall, all right. Much louder.
18 All right, let's have that question
19 read back, please. I don't think I got
20 it.
23 A. I would wash dishes and put them in their
24 place.
25 Q. Did you do that at the same time that you

454
2 were working at the fabric factory?
3 A. Yes, that was in the evening.
4 Q. And how long -- withdrawn.
5 I'm going to show you what's been
6 admitted as Plaintiff's Exhibit 7.
7 Can you tell the jury what those are?
8 A. They from the restaurant where I worked.
9 Q. They're the pay stubs?
10 A. Yes. I lost some.
11 Q. Why did you keep your pay stubs?
14 A. I like to keep things. I don't know.
15 Q. Now, where was the next place you worked?
16 A. Ferrara Foods.
17 Q. Now, when did you first start working at
18 Ferrara Foods?
19 A. I don't recall the date but I only know
20 it was in 1995.
21 Q. And how was it that you came to an employ
22 for a job there?
23 A. The factory where I was that did the
24 cloth dying there wasn't a lot of work there. My
25 cousin told me there was work there where she was

455
2 working.
3 Q. What was your cousin's name?
4 A. Gladys.
5 Q. When you first were hired, who hired you?
6 A. The supervisor named Pedro.
7 Q. Do you know if Pedro's also known by any
8 other names?
9 A. Yes.
10 Q. What other name?
11 A. Miguel Rogel.
12 THE COURT: Again Mr. Rodriguez the
13 Court interpreter's having difficulty
14 understanding you. You need to speak up
15 much louder and clearer. All right, sir.
17 Q. Did he ask you before he hired you if you
18 had experience working with dough mixing machines?
19 A. No.
20 Q. Did you ever tell Pedro or Miguel before
21 you were hired that you had experience working
22 with dough mixing machines?
23 A. No.
24 Q. How would you get to work by the way?
25 A. Sometimes walking. Sometimes by bus.

456
2 Sometime by bike.
3 Q. Now, when you began working there how
4 much were you being paid?
5 A. $4.25 an hour.
6 Q. When you finished working there, how much
7 were you being paid?
8 A. Didn't understand the question.
9 Q. When you -- at the time of your accident
10 how much were you being paid?
11 A. Total or the hour?
12 Q. The hourly?
13 A. The same $4.25.
14 MR. DURST: Your Honor, I would like
15 to show the witness Plaintiff's Exhibit 6,
16 which is in evidence.
17 Q. I'd ask you to describe for the jury what
18 those are?
19 A. They're pay stubs from when I worked in
20 Ferrara.
21 Q. Do you know there if that is all of them?
22 A. I lost some.
23 Q. Now, when you first started there, what
24 work did you first start doing ?
25 A. When I started Pedro had me sweeping,

457
2 picking up garbage.
3 Q. When you were first hired, did Pedro ever
4 show you the dough mixing machine?
5 A. No.
6 Q. How many dough mixing machines were there
7 at the Ferrara plant?
8 A. One.
9 Q. And who was working on the dough mixing
10 machine when you first were -- when you first
11 started working there?
12 A. Uh, there were two but I do not recall
13 their names.
14 Q. How many people would it take to work on
15 the dough mixing machine?
16 A. Two.
17 Q. When did you first see the dough mixing
18 machine?
19 How long after you first started working
20 there?
21 A. When I came to work, I looked at it but I
22 didn't look at it closely.
23 Q. How long did you work at Ferraro before
24 the accident happened?
25 A. Four, five months. I'm not sure.

458
2 Q. And how long did you actually work on the
3 dough mixing machine before your accident?
4 A. I didn't work on it long. All I did was
5 -- all I used to do was ask the people that were
6 there if I could turn it on and turn it off. And
7 they would tell me yes. But I was below. I won't
8 get on top.
9 Q. Now, I'm going to show you --
10 MR. DURST: Your Honor, may I show
11 the jury now the video of the dough mixing
12 machine?
13 THE COURT: Yes. Let's move the
14 project screen to the well of the court,
15 between the Court's bench and counsel
16 table so that all of the jurors can see
17 it.
18 All right ladies and gentlemen? And I
19 want all of you to tell me if you have a
20 good view of that screen.
21 Let's prop up the screen first. Let's
22 put it a little closer.
23 MR. DURST: Your Honor, if I put it
24 here so that I can get a proper angle.

459
2 proceedings. Off the record.)
4 gentlemen, all of you in the box, those of
5 who you are furthest away from the Court's
6 bench, can you see well?
7 Everyone in the box, can you all see
8 very well. All right. Very good.
10 proceedings, as the jurors view the video
11 in open court.)
12 MR. DURST: Your Honor --
13 THE COURT: What was that one in
14 evidence?
15 MR. DURST: That is Plaintiff's
16 Exhibit 8.
17 MR. DURST: If it's possible, Your
18 Honor, I'd like to ask maybe the witness
19 can describe some of the things that are
20 shown in the video and maybe refer to the
21 video as need be to show those specific
22 items such as the tilting.
23 THE COURT: All right. Let's lower the
24 blinds again.
25 MR. DURST: May I inquire, Your Honor.

460
3 BY MR. DURST:
4 Q. Mr. Rodriguez, was there a name plate on
5 the dough mixer machine?
6 A. The name of the machine?
7 Q. Was there a name plate on the machine?
8 A. Yes, there was.
9 Q. And on this video, can you tell me, point
10 for the jury, where the name plate appears on the
11 machine?
12 THE COURT: Do you want Mr. Rodriguez
13 to walk down into the well of the court to
14 do that?
16 THE COURT: Then let's do that.
17 Q. Would you point to the name plate that was
18 on the machine?
19 A. There.
20 Q. All right, and let me show you a closer
21 up of that.
22 Now that's the way the name plate
23 appeared on the machine on the day of the
24 accident.
25 A. I don't recall. It's been a long time.

461
2 Q. But that was the name plate on the
3 machine?
4 A. Yes.
5 Q. Now, sir, when you observed this machine
6 work, did you observe it prior to the accident
7 with the grating or the gate over the blades?
8 Do you remember seeing it with the gate
9 on before the accident?
10 A. I believe so.
11 Q. Point to the portion that you understand
12 that I'm referring to as the gate or the grating?
13 The safety grating?
14 A. (Witness indicating.)
15 MS. COTTES: Your Honor, might we
16 have a quick side bar?
17 I want to clarify one thing.
21 sworn jurors.)
22 MS. SCOTTO: I know we've already laid
23 a foundation for video in the back in the
24 robing room, but I don't think it's clear
25 for the jury when this inspection, you

462
2 know, that this was a video of inspection
3 as oppose to, you know, any day of the
4 week.
5 MR. DURST: I could clarify that.
6 MS. SCOTTO: If you would.
7 MS. COTTES: If you would, please, go
8 over that.
9 MS. SCOTTO: And what is it that's
10 he's pointing to, if you could make that
11 clear.
12 MS. COTTES: Merely go through the
13 whole foundation as much as you can for
14 the benefit of the jury so they know what
15 this tape is.
16 THE COURT: All right, your objection
17 is sustained.
20 sworn jury.)
22 BY MR. DURST: (Cont'd).
23 Q. Mr. Rodriguez, do you know when this video
24 was taken?
25 A. I don't recall the date.

463
2 Q. Well, who was it taken with?
3 A. My attorney, his secretary, and another
4 attorney.
5 Q. And was it taken after the accident?
6 A. Yes.
7 Q. And you were present when it was taken?
8 A. Yes.
9 Q. Was it taken at the Ferraro plant?
10 A. Yes.
11 Q. And is this the exact machine that you
12 were injured on?
13 A. Yes.
14 Q. But at the time of your accident was the
15 safety gate on the machine at the time of your
16 accident?
17 A. It didn't have it and it wasn't turning.
18 Q. Okay. When you say turning, you're
19 describing the moving, the tilting of the machine
20 that was shown on the videotape?
21 A. Yes. Moving downward.
22 Q. But, otherwise, it's exactly the same
23 machine?
24 A. It looks a little different.
25 Q. Okay. Now where did you first -- when you

464
2 first had occasion to operate this machine in any
3 way, what was it that you did?
4 A. These buttons that were here, these
5 buttons up here were to turn it on and to turn it
6 off.
7 Q. And that's what you did, you turned it on
8 and off?
9 A. Yes, because it did not work directly.
10 The machine did not work directly there.
11 The people that were working there, I
12 would ask them if I could do that.
13 Q. When you would push those buttons, what
14 would happen?
15 A. The blades would start turning.
16 Q. And are the blades the two pieces of
17 metal inside the -- point to the blades that you
18 refer to?
19 A. This one, and this one.
20 MR. DURST: Okay, indicating the
21 middle part of the hopper.
22 Q. And is that the blades turning there?
23 A. Yes.
24 Q. And did the blades turn in two different
25 directions?
465
2 A. When you had to take out the dough, it
3 had a lever that doesn't appear there now and
4 that's the lever that would make the blades turn
5 in reverse, so that you can remove the dough. And
6 the blades would remove the dough within the use
7 of the blades.
8 Q. Now, when you first saw -- observed
9 people using the dough, working on the dough
10 mixer, describe for the jury how they would remove
11 the dough?
12 A. When it used to work? Operate properly?
13 Q. Yes?
14 A. As I said before, when the dough was
15 ready, you would have to pull the lever down and
16 it would turn downward.
17 They would put a large container in the
18 bottom so the dough would drop into the container.
19 Q. Would you push that, that lever you
20 indicated to cause the blades to turn the opposite
21 direction to push the dough out?
22 A. Yes.
23 Q. And the times you observed them doing
24 that, did they have the safety gate in place?
25 A. I don't recall.
466
2 Q. When they would do that, how would
3 they -- would they manually help the dough, pull
4 the dough out as well or would the blades push the
5 dough out?
6 A. Would the blades -- the machine would
7 push everything out. They would only hold the
8 container.
9 Q. Okay. Now let me ask you to take a look
10 at the tilt here.
11 Is that the tilting that you're talking
12 about?
13 A. Yes. Yes.
14 Q. Now, when would it be tilted into the up
15 position?
16 A. To add more ingredients.
17 Q. Okay, how would you add the ingredients?
18 A. There would be a step that you get on.
19 Q. You mean a ladder?
20 A little step ladder?
21 A. Yes.
22 Q. How many steps in the stepladder?
23 A. I believe three.
24 I don't recall.
25 Q. And then what would you do after climbing

467
2 up the stepladder?
3 A. The helper would pass on the buckets of
4 flour, and they would deposit them into the
5 container.
6 Q. Had you ever observed them doing that
7 with the safety grating or the safety grating on
8 top when they would add the ingredients?
10 Q. And then once the ingredients were in
11 there, would the machine be turned on?
12 A. Yes.
13 Q. And the blades would rotate in one
14 direction; is that correct?
15 A. Yes.
16 Q. How long would the ingredients mix?
17 A. I believe 15 minutes. 15 minutes, half
18 hour.
19 I don't recall.
20 Q. And then what would happen?
21 A. When it was ready, they would do the same
22 operation.
23 Q. Make it go the other way tilt downwards?
24 A. Yes.
25 Q. And then make the blades rotate in the

468
2 opposite direction?
3 A. Yes, to remove the dough.
4 Q. And the dough would just come out into
5 the container?
6 A. Yes.
7 Q. Then what would happen?
8 What would be done with the dough that
9 was in the container?
10 A. The helper, the other helper would have
11 to pass that on to another machine.
12 Q. And what would be done?
13 THE COURT: All right, Mr. Durst, do
14 we need the video turned on now?
15 Can we all return to our seats?
16 MR. DURST: Yes, Your Honor. Let me
17 just -- if I could ask the witness to
18 indicate the height of the machine.
19 Q. When it's in the up position approximately
20 how high is it?
21 A. More, more or less the height of that.
22 A little higher.
23 Q. Well, compared to you how high is it?
25 Q. Well, when you're standing in this

469
2 photograph here, are you standing on the top step
3 of the stepladder?
4 A. Yes.
5 Q. And how tall are you?
6 A. Now?
7 Q. Now? Yes.
8 A. I don't know five-six.
9 Q. So as shown in the photograph that is the
10 position you would be in when you're adding the
11 ingredients?
12 A. Yes.
13 Q. And the people that you observed before
14 you, did they do anything else besides add the
15 ingredients when they were in that position?
16 Anything else besides add ingredients
17 when they're in that position?
18 A. That I recall, no.
19 MR. DURST: Okay. No further
20 questions with regard to the video, Your
21 Honor.
22 MR. DURST: Should you take it down?
23 THE COURT: That would be good.
24 MR. DURST: Although I may need it
25 again.
470
2 Whenever I may need it.
3 Q. Now, when did you first, yourself, work on
4 the machine?
5 Other than turning the buttons on and
6 off, when did you --
7 A. I would help someone that was working
8 there.
9 Q. And what would you do to help them?
10 A. I would give them the bundles of flour.
11 Q. How big were the bundles of flour?
12 A. I don't know. Some 50 pounds.
13 Q. And would you do anything besides that?
14 A. When the dough was already ready, was
15 already in the container, he'd show me how to send
16 it. To put it to the next machine.
17 Q. And what were they making with the dough?
18 A. They used that dough to make cannoli.
19 Q. Did they make anything but cannolies at
20 the Ferrara plant?
21 A. No. Only cannolies.
22 Q. Other than helping by bringing flour and
23 removing the dough after it was finished --
24 THE COURT INTERPRETER: Sorry. Start
25 that again.
471
2 MR. DURST: Okay.
3 Q. Other than bringing the dough, bringing
4 the flour and removing the dough, when was the
5 first time you started doing something more than
6 that with regard to the dough mixer?
7 A. I don't recall. It's been along time. I
8 can't recall.
9 Q. Well, do you remember a Friday where you
10 spent several hours working with the machine a
11 couple of days before the accident ?
12 MS. SCOTTO: Objection. Leading.
14 Q. Well, the day of the accident, was that
15 the first day you had worked on the machine?
18 A. It had been two days.
19 Q. Okay, and the date of the accident was
20 that a Tuesday?
21 A. Yes.
22 Q. Okay, and so you had worked on the
23 machine on Monday, as well?
24 A. All day.
25 Q. Now, on Monday was that the first day you

472
2 worked on the machine by yourself?
3 A. Yes.
4 Q. Now, did you work on the machine by
5 yourself that Monday all day?
6 A. Someone was helping me, but it wasn't
7 enough.
8 Q. What were they helping you by doing ?
9 A. After it was mixed, when the dough was
10 ready, they would have to help me to pass it onto
11 the next machine.
12 Q. Now on that date, that Monday, was the
13 safety gate on the machine?
14 A. No.
15 Q. When was the last time that you remember
16 having seen the safety gate on a -- that machine
17 at all?
18 A. I remember when I started working there
19 it was there. Then I didn't see it again.
20 Q. Did you remove the safety gate?
21 A. No.
22 Q. Had you ever touched the safety gate at
23 all before the accident?
24 A. No.
25 Q. On the day that you first -- that Monday

473
2 when you first started working on the machine, who
3 had shown you what to do?
4 A. The day I started working with the
5 machine was really Friday that I was helping, but
6 it was only like three hours.
7 Q. So the Friday before that Monday you had
8 actually helped the person who was operating the
9 machine for about three hours?
10 A. Yes.
11 Q. And who -- what was the name of the
12 person that was -- that you were helping on that
13 Friday?
14 A. I don't remember the name.
15 Q. How about that Monday, did you start off
16 helping that person or did you start working the
17 machine all by yourself?
18 THE COURT INTERPRETER: I'm sorry, the
19 last part of the question.
20 Q. Or did you work the machine by yourself?
21 A. I arrived early start to work.
22 The people were already ready to operate
23 the other machine.
24 I didn't ask anyone. I started working by
25 myself.
474
2 I told -- I asked the person named Roman
3 if I could work there. He said it's okay. Yes.
4 Q. Do you know if Pedro or Miguel the
5 supervisor knew you were working -- knew you were
6 working on the machine?
8 THE COURT: All right, sustained.
9 Rephrase.
10 Q. Did you speak to Pedro or Miguel your
11 supervisor about working on the machine on that
12 Monday?
13 A. No.
14 Q. Did he -- do you know -- did you observe
15 him while you were working on the machine and did
16 he observe you to your knowledge?
17 MS. SCOTTO: Objection as to what he
18 observed.
20 Q. Did he come around while you were working
21 on the machine?
22 THE COURT: He whom?
23 MR. DURST: Pedro. Sorry.
24 A. Yes. He told me that it was good what I
25 was doing that people there should do what I was

475
2 doing to learn many things there in the factory.
3 Q. Did he ever instruct you how to use that
4 machine?
5 A. No.
6 Q. Who was it that did instruct you how to
7 use that machine?
8 A. The person that worked that machine
9 showed me a bit.
10 MR. DURST: Your Honor, should we
11 take a break or.
12 THE COURT: Few more minutes.
13 MR. DURST: Okay.
14 Q. On that Monday -- well, on that Friday,
15 the day before the Monday, was the machine able to
16 tilt down so the flour would pour out?
17 So the dough would pour out?
18 A. No, it had been broken for about a month.
19 Q. So tell the jury how it is that you would
20 be -- how you would get the dough out or remove
21 the dough from that kettle or hopper?
22 MS. SCOTTO: On which day?
23 Q. On that Friday when you were working with
24 the other person, how would you -- how would he
25 remove the dough?

476
2 A. The machine would be full of dough. It
3 was very hard to take it out with your hands.
4 You would have to turn it on. The blades
5 would push the dough out and he would pull it
6 sometimes with his hand and sometimes we use a
7 knife to cut the dough because it would be too
8 thick.
9 Q. Now on that Monday, how did you remove
10 the dough?
11 A. The same way I observed him I did.
12 I tried with the machine in the off
13 position but it was very difficult. It was the
14 principle source to feed the other machines so the
15 other machines won't have to stop and I won't have
16 to be reprimanded.
17 Q. So describe for the jury exactly, you
18 know, as best you can how it is that you did
19 remove the dough after it had been mixed up on
20 that Monday?
21 A. I would have to turn the machine on. I
22 would grab -- from the outside I would grab the
23 dough and I would throw it into the container.
24 Q. And just to be clear --
25 MR. DURST: Your Honor, I'd just like

477
2 to put the picture up one more time of the
3 position that the dough mixer was in at
4 the time he would do that.
5 THE COURT: Let's just say what it
6 was in, all right. I think the jurors
7 remember the video. Let's go.
8 MR. DURST: All right. Thank you.
9 Q. And the position was not --
10 THE COURT: Not gesticulating with
11 your hands. Ask the question.
12 Q. It was in the --
13 THE COURT: Not gesticulating with
14 your hands. Ask the question.
15 Q. It was in the up position when you would
16 have to remove the dough?
17 A. Yes.
18 Q. Did you have to -- would you reverse the
19 blades so that they would turn in the other
20 direction?
22 Q. Now, at the time on Tuesday that the
23 accident happened about what time did the accident
24 happen?
25 A. Between 3:30 and 4:30. 4 o'clock in the

478
2 afternoon.
3 Q. What time would you finish working
4 typically?
5 THE COURT INTERPRETER: Excuse me.
6 Q. What time would you finish working
7 typically?
8 A. At five. I would go home at five.
9 Q. And what time would you start working?
10 A. 8 o'clock in the morning.
11 Q. Did you take a lunch hour?
12 A. Yes.
13 Q. How many times had you gone through the
14 procedure of -- well, describe how on that day how
15 would you operate the machine, as far as adding
16 the ingredients, making them up and then taking
17 the dough out?
18 A. I would add the ingredients on my own.
19 Alone I would put all the ingredients. I would
20 turn the machine on. I will allow the machine to
21 work while I would do something else that I had to
22 take care of.
23 Q. And then what?
24 A. When the contain -- the dough, the dough
25 that was in the container was finished, I would

479
2 have to take more dough out of the machine and do
3 the same operation pull it out with my hands.
4 Q. And how many times did you do that adding
5 the ingredients and then removing?
6 THE COURT: Stop gesticulating. Ask
7 the questions without gesticulating. All
8 right. Stand behind the podium.
9 MR. DURST: Okay, Judge.
10 Q. How many times would you do that?
11 How many times did you do that during the
12 course of your day?
13 A. Monday or Tuesday?
14 Q. Tuesday?
15 A. I believe eight or ten times.
16 Q. Now, let's -- that brings us up to the
17 time of the accident?
19 gentlemen. This is an appropriate time
20 for us to take our own luncheon recess. I
21 know some of you need coffee.
23 We'll take our luncheon recess. Tell you
24 what I'm going to do, since it's Friday we
25 all have one witness I'm going to say that

480
2 we should all be back here at 2:20. How is
3 that everyone? Around 2:20. Is everybody
4 happy with that? It's Friday. A little
5 longer, okay, everyone.
6 Please, ladies and gentlemen,
7 especially now that we are hearing the
8 testimony of plaintiff, please don't do
9 what New Yorkers do get on the subway
10 before people get off the subway, all
11 right. Wait until all the testimony is
12 done. Please don't discuss the testimony
13 amongst yourselves, with anyone else.
14 Don't allow anyone to discuss it with you
15 in the presence of those people parties or
16 attorneys or witnesses. See you back here
17 at 2:20. Super-size coffee, lemon zinger.
18 Whatever. All right, everyone. Have a
19 good lunch.
20 THE COURT OFFICER: Jury, all rise.
22 courtroom.)
24 THE COURT: Counsel ready to proceed.
25 MR. DURST: Yes Your Honor.

481
3 rise.
6 seats.)
8 gentlemen. Welcome back.
9 Have a seat everyone.
10 All right ladies and gentlemen, just
11 so you know, we are attempting to conclude
12 Mr. Rodriguez's testimony today but
13 because if I had a crystal ball, I would
14 know the winning lotto numbers and maybe I
15 might not be here. But there's no way for
16 me to know right now if we will be
17 concluded with this testimony this
18 afternoon and I realize it's Friday. I
19 realize notwithstanding the fact that
20 yesterday you guys got the afternoon off
21 so that counsel and the Court could engage
22 in legal issues because we're so good to
23 you. I am being mindful of the fact that
24 it is Friday. We will endeavor as much as
25 is possible to be concluded with his

482
2 testimony no later than 4:30, quarter to
3 five. All right, ladies and gentlemen.
4 Because we know that some of you may drive
5 and the Deegan gets backed up with Jersey
6 traffic on Friday afternoon so we will do
7 the best that we can to conclude with Mr.
8 Rodriguez's testimony this afternoon. All
9 right everyone.
10 That being said Mr. Durst let's
11 continue with your direct.
13 Good afternoon everybody
16 Q. Mr. Rodriguez, would you tell the jury how
17 it is, if you know, the machine would be cleaned?
18 A. He used to clean it with a knife but I
19 never cleaned it.
20 THE COURT: All right, let's -- just
21 one second, please.
22 Mr. Rodriguez, once again, I need for
23 you to speak loudly and clearly because we
24 are utilizing the services of the official
25 court interpreter but to the extent that

483
2 the Court understands, speaks and
3 understands and reads and write Spanish, I
4 need to hear you, as well, just to assure
5 myself that the interpretation doesn't
6 miss out on one of your responses because
7 you are speaking in such a low voice and
8 from time to time I do look towards the
9 interpreter who is valiantly endeavoring
10 to hear everything that you say.
11 So, please, Mr. Rodriguez, you must
12 speak up loud and clearly and project your
13 voice to the back of the courtroom as if
14 you were on the soccer field and you had
15 just won a major goal on the soccer field.
16 You understand that, sir?
18 THE COURT: In that same level of
19 voice if you had won a goal on the soccer
20 field. All right, sir?
21 Nice and loud.
22 All right, you may inquire.
25 Q. Do you know when the machine -- had you

484
2 observed the machine being cleaned before?
3 A. Few times.
4 Q. And how was the machine cleaned?
5 A. With a knife they would clean what was
6 left. The residue of the dough.
7 Q. And when the machine was being cleaned,
8 would it be turned on or off?
9 Would the blades be turning or not
10 turning?
11 A. Off.
12 Q. Now, did you ever tell your supervisor
13 Mr. Rogel that you were cleaning the machine at
14 the time of the accident?
15 A. No.
16 Q. Now, tell the jury exactly what you were
17 doing right before the accident happened?
18 A. I was removing the dough from the
19 machine.
20 It was very little dough and it had
21 formed like lumps of various sizes.
22 Q. Now, then tell the jury what happened
23 next?
24 A. I was trying to grab the lumps with the
25 machine in the on position because if it was off,

485
2 I couldn't remove them.
3 That's when the accident occurred.
4 Q. What happened?
5 A. One of the blades grabbed my hand, pulled
6 it.
7 Q. And then what happened?
8 A. And it pulled me.
9 I was very surprised. It happened very
10 quickly. I was very surprised and the machine
11 itself pulled my hand outward. My fingers were
12 hanging from my hand.
13 Q. At about what time was it?
14 A. 4, 4:30.
15 Q. How were you feeling at that time --
16 THE COURT INTERPRETER: Sir, you have
17 to let me interpret.
18 A. -- before or after the accident?
19 Q. Before the accident.
20 THE COURT: How was he feeling before
21 the accident, is that your question?
22 A. I was very tired. Very weak.
23 MR. DURST: Your Honor, could I show
24 the plaintiff, Exhibit One?
25 The photograph exhibit?

486
2 Q. Mr. Rodriguez, can you just show the
3 jury --
4 THE COURT: Is that what?
5 THE COURT OFFICER: Three.
6 THE COURT: Are you referring to
7 Exhibit Three?
8 Plaintiff's Exhibit?
9 MR. DURST: I believe it's Exhibit
10 Three, yeah.
11 Show the witness that. Yes, Exhibit
12 Three.
13 Q. Just point to how you were standing at the
14 time that the accident happened?
15 Show the photograph to the --
16 THE COURT: Just one second. Let's
17 establish where he was at the time that
18 the accident occurred before you do that,
19 all right?
20 Q. Where were you at the time the accident
21 happened?
22 THE COURT: No, no, no. Just answer
23 that question.
24 A. On the ladder. The stepladder.
25 Q. Were you standing in the position, as

487
2 shown in that photograph?
3 A. Straight.
4 Q. Okay, just show --
5 THE COURT: I'm sorry. What did you
6 say?
7 A. Straight.
8 Q. In other words?
9 THE COURT: Just straight, all right.
10 Q. In other words --
11 THE COURT: In other words, what does
12 straight mean?
13 Q. That's what I was going to ask?
14 THE COURT: Without referring to --
15 let's find out what that means. All
16 right, sir.
17 Q. Well, okay what do you mean by straight?
18 THE COURT: Standing straight?
19 A. I wasn't on my side. I was standing
20 straight.
21 Q. Facing the hopper or the kettle?
22 A. Yes.
23 Q. And were you leaning over to reach the
24 dough?
25 MS. SCOTTO: Objection. Leading.

488
3 Just ask a direct question.
4 Q. Okay, what were you doing when you were
5 standing there straight?
6 A. Removing what was left of the dough.
7 Q. Okay, using the photograph can you show
8 -- just point to which way you were facing towards
9 the kettle.
10 Hold it up so we can all see.
12 second.
13 Ladies and gentlemen, can everyone see
14 that photograph?
15 And those of you furthest away can you
16 see?
17 All right, I'm going to ask you Mr.
18 Rodriguez to place it -- why don't you
19 stand in front of the jury Mr. Rodriguez
20 and using Plaintiff's Number Three.
21 THE COURT: Right at the bench.
22 On the shelf to show them with
23 reference to Plaintiff's Number Three,
24 show them how you were standing at that
25 time.
489
2 A. I was looking towards the container the
3 way I am now.
4 Q. As if the jury box is the kettle, you
5 mean?
6 A. Yes.
7 Q. And what were you doing?
8 A. Removing the lumps of dough that was
9 left.
10 Q. And the blades were they turning?
11 A. They had to be on. That's the only way I
12 could remove it.
13 Q. And were the blades turning in the
14 direction to cause the dough to come up?
15 A. It had to turn such a way so the dough
16 would be removed.
17 THE COURT: All right. Just one
18 second.
19 All right, do we need him to stay
20 there with Plaintiff's Number Three before
21 the jury?
22 MR. DURST: No, Your Honor.
23 THE COURT: All right. Thank you very
24 much.
25 Senior Rodriguez, if you could return

490
2 to the witness box.
3 All right. Next question.
4 Q. After the blades grabbed your hand, how
5 did it get free?
6 A. I don't know how the machine released me.
7 I don't recall.
8 I was very surprised. I didn't know what
9 was going on.
10 Q. What happened next after you experienced
11 that?
12 A. I went down the steps and I walked toward
13 the office with Pedro -- where Pedro and Miguel
14 were.
15 Everyone looked at me. They started
16 screaming. Pedro looked at me and asked me what
17 had happened.
18 He asked me if the machine grabbed me
19 when I was working? I just moved my head. Shook
20 my head. I didn't know what to say. I was in a
21 state of shock.
22 Q. And then what happened next?
23 A. They put some towels on my hand. The
24 blood was coming out of me like water, like a
25 hose.
491
2 Pedro told me he was going to take me to
3 the hospital in his own car.
4 He took me to the elevator. He said no,
5 wait. I have to call the ambulance. He called the
6 ambulance.
7 Q. Then were you taken to the hospital in
8 the ambulance?
9 A. Yes, about half hour later the ambulance
10 arrived.
11 Q. What did the ambulance people do for you
12 in the ambulance?
13 A. I don't recall that they gave me an I.V.
14 or they put me in the ambulance.
15 Q. What did your hand look like?
16 A. My fingers were hanging. I couldn't look
17 at it. It was full of blood.
18 THE COURT: All right, let me just
19 stop his testimony right here. Let's
20 publish to the jury because we had yet to
21 publish Plaintiff's Number Three at this
22 point.
24 proceedings, as Plaintiff's Exhibit Three
25 is published to the jury.)

492
2 And while we're at it, let's publish -
3 let's quickly publish 5, 6 and 7. Very
4 quickly let's published those, okay. Just
5 so I don't forget them.
6 MS. SCOTTO: Your Honor, may we
7 approach?
8 THE COURT: Yes.
10 at side-bar, amongst Court and counsel,
11 off the record.)
13 gentlemen, I thought I would publish 6, 7,
14 -- 5, 6, and 7 but we do need to make
15 redactions.
16 So I misspoke. So let's just look at
17 number three. We will make redactions with
18 5, 6 and 7 and we will publish that to you
19 before you retire for your deliberations.
20 I was trying to be efficient but I
21 misspoke.
22 All right, let's proceed then.
25 Q. What did they do for you in the emergency

493
2 room?
3 A. They took me to the emergency. They left
4 me there for about half an hour.
5 THE COURT: Emergency room where?
6 Q. What hospital did they take you to?
7 A. Bellevue Hospital that's on 28th and
8 First.
9 Q. And what did they do for you in the
10 emergency room?
11 A. The doctor came over, took off the
12 bandage from my hand. It had stopped bleeding but
13 then the blood started gushing again.
14 He did some test to see if I felt my
15 fingers. He told me he had to cut my fingers.
16 They took me to radiology and took, took
17 a picture of my hand, an x-ray to see them. Then
18 they took me to the operating room.
19 Q. Do you know the name of the doctor who
20 actually did the operation?
21 A. I saw a name that said Adam.
22 THE COURT: Adam.
23 A. Adam, but I don't know anything further
24 than that.
25 Q. After the operation, what's the next thing

494
2 that you remember?
3 THE COURT: All right, let's establish
4 the date, if we can.
5 Q. Do you remember when it was that you
6 became conscious after the operation?
7 A. What was the date of the accident; is
8 that what you mean?
9 Tuesday, 14th, 1995, of March.
10 THE COURT: And the date of the
11 surgery, counsel, was?
12 Q. What was the date of the surgery? The
13 same day?
14 A. I think so.
15 Q. What's the next thing you remember after
16 the operation?
17 A. They said my name and I woke up.
18 Then they took me to a room and they kept
19 me there with an I.V.
20 My arm was completely bandaged.
21 Q. And did you know at that time what they
22 had done?
23 A. No. I felt my fingers there.
24 Q. What was -- what was -- how many days did
25 you stay in the hospital?

495
2 A. I'm not sure. I think it was four.
3 I didn't know whether it was day or
4 night. It was dark there.
5 Q. Did you have visitors?
6 A. The people who I worked with.
7 Q. Did you speak at any time with Miguel,
8 Rogel at the hospital?
9 A. After the accident. When I was there
10 afterwards.
11 Q. After the accident?
12 A. He came to see me. He came to see me, but
13 we didn't speak.
14 Q. You didn't speak?
15 What do you mean?
16 A. No, no. He only asked me how I was
17 feeling? How I was doing?
18 At that time I don't know if it come to
19 the case now. Two girls that worked there --
20 MS. SCOTTO: Objection, Your Honor.
21 THE COURT: Well, I don't know where
22 he's going yet, so.
23 A. -- they told me after I had the
24 accident --
25 MS. SCOTTO: Objection as to what was

496
2 said.
3 THE COURT: Sustained, as to any
4 hearsay.
5 Q. What can you remember about appearing in
6 the hospital?
7 Can you tell us what you remember about
8 that period of time?
9 THE COURT: All right, with reference
10 to what Mr. Durst?
11 Q. With reference to what you did? How you
12 felt?
13 A. I couldn't sleep. My mind was always on
14 my hand, what happened.
15 The doctor came over and told me he had
16 to amputate my fingers. That's the one who I saw
17 the name that said Adam.
18 Q. Did you have any counseling or did
19 somebody talk to you about --
23 Q. Did you have any counseling or anybody
24 talk to you about the hand?

497
3 THE COURT: All right, I will allow it
4 but please rephrase the question.
5 Q. Did any counselors talk to you about the
6 injury in the hospital?
7 A. They asked me if I wanted to see a
8 psychologist.
9 Q. And what did you say?
10 A. I told them no.
11 Q. Describe how your hand felt after you
12 left the hospital?
13 A. My entire arm hurt. From here. From my
14 waist up, all the way down to my hand.
15 I couldn't straighten my hand. I had to
16 keep it curled around my body.
17 THE COURT: From your waist up there
18 was what?
19 THE WITNESS: From my waist all the
20 way.
21 THE COURT INTERPRETER: From my waist
22 all the way to the bottom of my hand. It
23 hurt.
24 THE COURT: I'm sorry, Madam
25 interpreter.
498
2 I'm sorry, could you just elaborate
3 because I'm not quite sure I got that from
4 the waist.
5 THE COURT INTERPRETER: From my waist
6 up and down to my hand.
7 THE COURT: To the shoulder?
8 I'm sorry, from the waist up to
9 shoulder down.
10 THE COURT INTERPRETER: Down to my
11 hand.
12 THE COURT: And the balance of what was
13 what? I'm sorry.
14 THE COURT INTERPRETER: I couldn't
15 straighten my hand. My arm I had to keep
16 it curled around my body.
17 THE COURT: Okay.
18 All right. I'm sorry.
19 Q. Where did you go home to?
20 A. My uncle's. The 260 Washington Avenue,
21 they went to pick me up.
22 Q. What did you do when you got home?
23 A. Rested.
24 Q. Now, after you got out of the hospital,
25 what was the next, doctor --

499
2 THE COURT: Is there a date of
3 reference for that, please.
4 Q. Do you know the date it was you got out of
5 the hospital?
6 A. I believe it was a Saturday. Saturday in
7 the morning.
8 Q. Now, when was the next time you saw a
9 doctor?
10 A. I don't recall if it was two weeks later
11 or a week later.
12 Q. And where did you go to see the doctor?
13 A. The same hospital. They gave me an
14 appointment.
15 Q. And what did they do for you there?
16 A. To check my hand to see how it was doing.
17 Q. When you were at home, were you taking
18 care of your hand in some fashion?
19 A. They gave me a sort of prosthesis to keep
20 my arm in a certain way.
21 I couldn't move it. If I move a little
22 it hurt a lot. I couldn't move it I had to keep it
23 in this position all the time.
24 THE COURT: I'm sorry. When you're
25 saying this position, what do you mean

500
2 just for the record.
3 A. It was a plastic under my arm holding my
4 arm, and my finger, my thumb and my fingers, were
5 put in such away so it was immobilized so it won't
6 move.
7 Q. When you went back to the doctor, what
8 did they do for you?
9 When you went back to the doctor, what
10 did they do for you (sic)?
11 A. They removed the stitches.
12 What was left the scarring that was left
13 in my hand. What was left of my hand. The residue
14 blood.
15 Q. And then what was -- when was the next
16 time you went back to the doctor, do you remember?
17 A. I don't recall very well. It was a long
18 time ago.
19 I don't I think it was like three weeks
20 or a month.
21 I don't really recall. Maybe two weeks.
22 I'm not sure.
23 Q. And was that also back at Bellevue?
24 A. Yes.
25 Q. And do you remember what was done then?

501
2 A. Went to rehabilitation to do some
3 exercises for my hand cause I couldn't move this.
4 Either finger.
5 THE COURT: I'm sorry because?
6 THE COURT INTERPRETER: I couldn't
7 move either finger.
8 THE COURT: By either finger what do
9 you mean?
10 THE WITNESS: I couldn't move them.
11 They were stiff.
12 Q. For the record which fingers are you
13 referring to?
14 A. My thumb and my pinky.
15 Q. And how often did you go back to the
16 hospital for rehabilitation?
17 A. I believe it was every three weeks.
18 Q. And what would you do during that
19 physical therapy?
20 A. They would make me do a series of
21 exercises for my hand.
22 They would put my hand in something like
23 sand so I would feel my hand.
24 A series of exercises that I don't
25 recall.
502
2 Q. Did you start getting movement back in
3 your pinky and your thumb?
4 A. Yes.
5 Q. How long was it before you could start
6 moving your pinky and thumb?
7 A. Three, four months. I'm not sure.
8 Q. Now, how many of your thumbs got
9 amputated?
10 A. The entire nail.
11 MR. DURST: Your Honor, may we show
12 the hand to the jury at this point?
13 THE COURT: Yes.
14 MR. DURST: Mr. Rodriguez.
15 (Whereupon, the witness descends the
16 witness stand and is published to the jury
17 in open court.)
19 gentlemen. Can everyone in the back row
20 see?
21 All right, Mr. Rodriguez, you may
22 return to the witness box.
23 (Whereupon, the witness resumes the
24 witness stand.)
25 THE COURT: So ladies and gentlemen,

503
2 based upon your view of Mr. Rodriguez's
3 hand, based upon the testimony of the
4 doctor and Mr. Rodriguez, it's your
5 determination as to what part of that
6 thumb is remaining with the balance of his
7 hand.
8 All right, proceed.
9 Q. How long did you have treatment at
10 Bellevue?
11 A. I'm not sure if it was four or five
12 months.
13 Q. And after you stopped treating there who
14 did you see next?
15 A. Doctor George Unis.
16 Q. The gentleman who testified in here?
17 A. Yes.
18 Q. And what did he do for you?
19 A. He would check my hand and he would make
20 notes -- take notes.
21 He would ask me if I needed anything for
22 pain.
23 Q. When did you first get the prosthesis for
24 your hand?
25 A. You mean that?

504
2 Q. Yes, sir?
3 Or the first prosthesis you had?
4 Is that the only one you had?
5 A. I don't know if you could call it
6 prosthesis.
7 The one they gave me in the hospital.
8 Put on in the hospital.
9 Q. Okay, but besides that one, is this the
10 only other one?
11 A. Yes.
12 Q. I'm referring to Plaintiff's Exhibit
13 Nine, which is in evidence.
14 Now, would you describe for the jury --
15 why don't you show the jury -- well, first when
16 did you get this?
17 A. November 1997.
18 Q. Who prescribed it?
19 A. I really don't recall.
20 Q. Who prescribed it for you?
21 A. Who made it?
22 Q. What doctor prescribed it for you?
23 A. I believe it was Doctor Unis.
24 Q. Okay. Now, would you show the jury how
25 you use this?

505
2 How you put it on, and what it looks like
3 after it's on?
5 A. Now --
7 Q. Do you wear this sometimes?
8 A. No.
9 Q. Why not?
10 A. I used it three or four times.
11 Q. Why don't you wear it?
12 A. It bothers me.
13 Q. Why?
14 A. It bothers me. The material that it's
15 made with it's very hard and it bothers this area
16 in my hand.
17 THE COURT: All right with reference
18 to the area, let's specify the area that
19 he's referring to.
20 A. This area here (indicating).
21 THE COURT INTERPRETER: Pointing to
22 the knuckle area.
23 THE COURT: The stumps of the three
24 fingers.
25 A. Stumps of the fingers.

506
2 MR. DURST: Your Honor, may we pass
3 this around?
4 THE COURT INTERPRETER: Sorry, he's
5 not done.
6 A. And it's also I think it's bigger than my
7 other hand and it's a different color.
8 THE COURT: All right, did you ask him
9 if he wanted to put that on?
10 Is that your question?
11 MR. DURST: Yes, I did ask that.
12 THE COURT: Are you still asking that
13 question?
14 MR. DURST: Sure.
15 Q. Would you put it on and show the jury what
16 it looks like when it's on?
17 A. I need cream.
18 Q. Do you have cream with you?
19 A. No.
20 MR. DURST: May I published this to
21 the jury, Your Honor?
22 THE COURT: Yes.
24 proceedings as the prosthesis is published
25 to the jury in open court.)

507
2 THE COURT: The record should reflect
3 it's been published to the jury.
4 Next question.
5 Q. Are you currently working anywhere, Mr.
6 Rodriguez?
7 A. No.
8 Q. When was the last time you worked?
9 A. At the time of the accident.
10 Q. Had you looked for work since the
11 accident?
12 A. Yes.
13 Q. Why had you not been able to find a job?
15 MS. COTTES: Objection to form.
17 A. I looked for work for five, six months. I
18 couldn't find work. They didn't want to give me
19 work.
20 Q. Well, after the accident, how long was it
21 before you started looking for work?
22 A. About a year. Eight months. Something
23 like that.
24 Q. Did anyone every tell you why you
25 couldn't work for them?

508
4 Q. Did anyone ever tell you that you could
5 not work for them because of the injury to your
6 hand?
9 THE COURT: Sustained. Let's restate
10 the question.
11 Q. Can you tell the jury the places that
12 you've looked for work?
13 A. In Brooklyn in grocery stories, bodegas.
14 Q. How much can you lift with your right
15 hand?
16 A. Not a lot.
17 Q. Can you grip with your right hand?
18 A. Something that's not heavy.
19 Q. Are you right-handed or left handed?
20 A. I'm right-handed but I had to learn to
21 write with my left hand and I do not do it very
22 well.
23 I had to learn to do stuff with my left
24 hand.
25 Q. Can you write with your right hand at

509
2 all?
3 A. Not a lot. Not for a long time because of
4 my hand hurts.
5 Q. With your right hand?
6 A. Yes.
7 Q. Can you grip a pen?
8 A. Yes.
9 Q. Now, could you touch your pinky to your
10 thumb, thumb with your right hand?
11 A. Yes.
12 Q. How much? Do you know how much you might
13 be able to lift with your right hand?
14 A. Maybe ten pounds, or less.
15 Q. Can you hold a spoon in your right hand
16 now?
17 A. Yes.
18 Q. Do you eat with your right hand?
19 A. Left.
20 Q. Are you able to dress yourself?
21 A. It's difficult to button buttons on my
22 shirt, to put on my socks, to tie my laces, to cut
23 my nails.
24 I can't cut my nails with my left hand.
25 THE COURT: Left hand or right hand?

510
2 THE COURT INTERPRETER: Oh, with the
3 right hand.
4 Q. Are you able to use the wrist with your
5 right hand?
6 A. Yes.
7 Q. Tell us what you do on a normal day now?
8 A. I'm home. I visit friends.
9 Q. Before the accident happened, describe
10 your activities that you would do besides work?
11 You know of a social nature?
12 A. I did the same. I visit my friends.
13 Majority of the time I was home.
14 Q. What did you like to do for fun before
15 the accident?
16 A. Nothing. I was home. I would watch T.V.
17 I used to like watching videos on T.V.
18 Q. Are there things that you used to be able
19 to do that you can't do now because of the injury
20 to your hand?
21 A. Yes.
22 Q. Like what?
23 A. I used to play the guitar, I can't.
24 Q. Any sports that you used to do before the
25 accident?
511
2 A. I would play basketball.
3 Q. Have you been able to play basketball
4 since the accident?
5 A. No.
6 Q. What things do you have trouble doing now
7 that you used to do on an everyday basis?
8 A. There's somethings that I can do and
9 there are somethings that I cannot do.
10 Q. Can you drive a car?
11 A. With my left hand.
12 If it's and automatic I have to grabbed
13 the gears with my left hand.
14 Q. You have to shift gears with your left?
15 You can't shift gears with your right
16 hand?
17 THE COURT: Did he say if it was an
18 automatic.
19 THE INTERPRETER: Yes.
20 Q. Okay, how do you feel emotionally since
21 the accident?
22 MS. COTTES: Just note my objection
23 to that question.
24 MS. SCOTTO: Note my objection, as
25 well.
512
2 THE COURT: Sorry, what was that
3 question again?
4 MR. DURST: How does he feel
5 emotionally since the accident?
6 THE COURT: How does he feel -- say
7 that again?
8 MR. DURST: Emotionally.
10 A. I feel bad. I can't greet people with my
11 right hand. I have to do it with my left. They
12 all the ask me why I do that. They notice what's
13 wrong with me, what's there.
14 It bothers me when they ask me questions
15 about what happened. What happened there. That's
16 why I greet people with the other hand so they
17 won't ask me any questions.
18 The majority of time I put my hand in my
19 pants pocket.
20 When it's cold, I wear very long jacket
21 and I put my hand there.
22 THE COURT: Puts hand where?
23 A. I hide it in the sleeve.
24 Q. Do you have pain in your hand?
25 A. When it's cold I feel a lot of pain.

513
2 Q. Is it painful when somebody touches it?
3 A. No. If by accident I should hit something
4 or tap something it hurts a lot.
5 Q. Do you have a girlfriend now?
6 A. Do I have to answer that?
7 Q. No.
8 A. Okay.
9 Q. Do you have a girlfriend?
10 A. No.
11 THE COURT INTERPRETER: I'm sorry,
12 what did you say?
13 MR. DURST: Do you have a girlfriend.
14 A. No.
15 MR. DURST: No further questions,
16 Your Honor.
17 THE COURT: Ladies and gentlemen,
18 before we begin cross, I'm going to give
19 you a well deserved five minute recess and
20 some of you may need, and I see people
21 like smirking at me, you may need a rest
22 room break.
23 All right five minutes everyone.
25 yourselves, with anyone else. Do not

514
2 allow anyone to discuss it with you. If
3 any person attempts to do so, please bring
4 it to my immediate attention. Don't talk
5 to the parties or any of the witnesses.
6 Five minute recess.
7 THE COURT OFFICER: All rise, jury
8 exiting.
10 courtroom.)
12 THE COURT: Counsel, now that there
13 have been redactions made to Plaintiff's
14 Five, Six, and Seven, in evidence, I'm
15 going to publish them to the jury at this
16 time.
17 All right, Mr. Rodriguez would you
18 return to the witness stand.
19 MS. SCOTTO: Your Honor, may the
20 record just reflect that I had requested
21 the word "social security number" be
22 redacted.
23 THE COURT: Yes. Absolutely.
25 THE COURT: I think the record was

515
2 clear from our prior conference in the
3 robing room. Let's bring out the jurors.
5 rise.
8 seats.)
9 THE COURT: Have a seat everyone. All
10 right, ladies and gentlemen. I am going
11 to give you an opportunity to quickly look
12 at plaintiff's Five, Six, and Seven in
13 evidence.
14 Now, let me just make sure that you
15 understand that I'm giving it to you now
16 but should you feel the need to refer to
17 that during your deliberations, you can
18 have it and you can have it for as long as
19 you wish.
20 So I'm going to give you an
21 opportunity to quickly go through these
22 and then we will have Miss Cottes and Miss
23 Scotto with their cross examinations. So
24 quickly, if you wish.
25 But again, if you need them later

516
1 MR. RODRIGUEZ - PLAINTIFF - CROSS/MS. COTTES
2 during your deliberations, you can have
3 them and look at them for as long as you
4 wish.
6 proceedings as the jurors view the
7 exhibits.)
8 THE COURT: May I see counsel at side
9 bar.
11 at side bar, amongst court and counsel off
12 the record.)
16 BY MS. COTTES:
17 Q. Mr. Rodriguez, good afternoon.
19 Q. As you know, I'm the attorney who
20 represents a party by the name of National
22 A. Uhm hum.
23 Q. Other than within your case and at this
24 trial have you ever heard of National Equipment
25 Corporation?
517
2 A. Before my case?
3 Q. Yes?
4 A. No.
5 Q. Now, you identified a name plate on the
6 video that Mr. Durst played for you?
7 A. Yes.
8 Q. Other than that name plate, did the
9 machine involved in your accident have any other
10 identifying features on it?
11 A. No, I don't recall.
12 Q. Did it have a serial number?
13 A. I never saw it.
14 Q. Now, when you said your accident occurred
15 at -- during your third day of working on that
16 dough mixing machine?
17 A. Yes and no. Because on Friday I only
18 worked three hours on it. Monday I worked the
19 entire day. And Tuesday I almost finished the day.
20 Q. And prior to that Tuesday, you had been
21 working for Ferrara Foods approximately 6 months
22 you said?
23 A. Six or five. I don't recall.
24 Q. When you first started at Ferrara Foods,
25 did you have any training by them by anyone there?

518
2 THE COURT: With regard to what Miss
3 Carter.
4 Q. With regard to use of any of the machines?
5 A. They showed me a machine that wasn't a
6 machine to mix dough. And the one to mix dough
7 they showed me but not a lot. But about two or
8 three days. Maybe one day.
9 Q. Okay and when they showed you the dough,
10 how to use the dough mixing machine, what was the
11 extent of the training Ferrara gave you?
12 A. They showed me on machine to mix dough.
13 Where I had my accident or another
14 machine?
15 Q. No with respect to the few days training
16 you had on the dough mixing machine, what did they
17 do to train you?
18 A. To put in the ingredients, to operate it
19 where one button was to turn it on one to turn it
20 off.
21 I already knew how to do that. I looked
22 at it and I learned it. Only that.
23 Q. Now do you know where Ferrara Foods
24 bought that dough mixing machine from?
25 Where they got it?

519
2 A. No.
3 Q. Do you know if it was bought new or used?
4 A. No, I don't know.
5 Q. Do you know how long Ferrara had that
6 machine before you began working for Ferrara?
7 A. No.
8 Q. Do you know who manufactured the machine?
9 A. No.
10 Q. Do you know when or where it was
11 manufactured?
12 A. No.
13 Q. Other than Pedro or Miguel, were you
14 supervised by anyone else while at Ferrara?
15 A. No only him.
16 Q. Now earlier today you said after looking
17 at the inspection video that sometime prior to the
18 day of the accident the safety grate had been on
19 the machine but then on the day of your accident
20 it wasn't on the machine; is that right?
21 A. Yes.
22 Q. Do you know who at Ferrara removed that
23 safety grate?
24 A. No.
25 Q. Are you familiar with a micro switch?

520
2 Something that's called a micro switch on
3 that dough mixing machine?
4 THE COURT INTERPRETER: Micro?
5 Q. Micro switch?
6 A. No.
7 Q. Do you know if any one from Ferraro ever
8 removed something from the machine which would
9 stop the blades from moving if the grate was open?
10 THE COURT INTERPRETER: If?
11 Q. If the grate was open or completely off?
12 A. No.
13 Q. And you testified earlier that the
14 machine couldn't tilt at the time of the accident;
15 is that right?
16 THE COURT INTERPRETER: At the time
17 of the accident?
18 A. Yes, it was broken.
19 Q. And do you know how long prior to the
20 date of the accident it was broken?
21 A. I believe a month, three weeks.
22 Q. And do you know who at Ferraro was in
23 charge of repairing it or asking for a repair?
24 A. Pedro Miguel had to call somebody. Pedro
25 Miguel had to call somebody (sic).

521
2 Q. And do you know if he did?
3 If they were waiting for someone to come
4 and repair this?
5 A. I never knew. They didn't say anything.
6 Q. Did anyone at Ferraro tell you not to
7 work on the machine while it was in disrepair?
8 A. No. They continued using that machine
9 even though it was broken.
10 Q. And did anyone at Ferrara tell you not to
11 use the machine because the safety grate was off?
12 A. No, the person that operates the machine
13 continued to operate that machine.
14 Q. Now if the safety grate had been on, you
15 would not have been able to stick your hand into
16 the blades at the moment of your accident; isn't
17 that right?
18 A. Uhm, had it been working correctly that
19 it tilted, I won't have had to put my hand in
20 there to remove the dough.
21 Q. Okay, so if the tilting part of it had
22 been fixed, it would have been tilted towards you
23 as oppose to in the upright position?
24 THE COURT INTERPRETER: Up?
25 THE COURT: Yeah.

522
2 Q. If the tilting part of the machine had
3 been fixed or not broken, it would have been
4 tilted with the gate facing you instead of the
5 upright position?
6 A. It should have been tilted and not
7 standing up.
8 Q. Okay, and if it had been tilted, what
9 would you have been doing differently at the time
10 of your accident?
11 THE COURT: Just one second. All
12 right you have two questions.
13 Tilting and with the safety. I'm not
14 quite sure what your question was .
15 MS. COTTES: Now I'm just dealing with
16 the tilting because that's what he began
17 talking about.
18 I'll go back to the safety grate.
19 Q. In other words had the machine been tilted
20 towards you at the time of the accident, would you
21 have stuck your hand into the moving blades?
22 A. I won't have to.
23 Q. Okay and could you explain that. Why?
24 A. The machine with the dough inside when
25 it's ready I have to get container close to the

523
2 machine and the machine had to tilt reverse the
3 lever so the blades would work backwards and the
4 blades would have pushed the dough into the
5 container. All I would have to do is hold the
6 container.
7 MS. COTTES: Can I see Plaintiff's
8 Three, the photograph.
9 Just so I'm understanding this right.
10 This right, Mr. Rodriguez. Because you
11 couldn't tilt this part of the machine
12 forward --
13 THE COURT: All right, I'm going to
14 ask you Miss Cottes just so the record is
15 clear what you are referring to when you
16 say this part of the machine.
17 MS. COTTES: Okay, I'm referring to
18 the rectangular kettle drum type of steel
19 part of machine indicated in Plaintiff's 3
20 which is in evidence.
21 Q. But because the tilting feature of the
22 machine was broken, you had to reach into the
23 blades over the top?
24 A. Not inside because. When there's a lot
25 of dough, if it can't go down, it can't tilt. You

524
2 don't put your hands in because it's full but --
3 can I stand up?
4 THE COURT: Yes.
5 A. I'm like this working. The blades are
6 working.
7 THE COURT: All right just one second
8 for the jury's edification, you're talking
9 about when the machine an the kettle is in
10 the up position, is that your question
11 Miss Cottes?
13 MS. COTTES: I'm asking him.
15 MS. COTTES: Because the machine's
16 tilting feature was broken, he had to
17 reach into it at the moment.
18 THE COURT: Okay, but my question is
19 it's as you look at Plaintiff's 3, the way
20 the machine is demonstrated in that
21 Plaintiff's Number Three with the kettle
22 facing up, is that your question?
23 MS. COTTES: Yes.
24 THE COURT: Okay so. Let's just try
25 it again with regard to your question as

525
2 demonstrated in Plaintiff's 3 with the
3 kettle facing up. All right.
4 Okay, with the kettle facing up, is
5 that your --
6 THE COURT: Is that your response Mr.
7 Rodriguez with the kettle facing up?
8 THE WITNESS: Yes.
9 THE COURT: Okay. Thank you.
10 Q. Now the safety grate that you said was off
11 where would that be if at all in plaintiff's 3?
12 A. Here. Here covering this. Covering that.
13 THE COURT: I'm going to ask Mr.
14 Rodriguez to face the juror.
15 THE COURT: You don't have to go all
16 the way down. Only if the jurors need to
17 see. Can every one in the box see what Mr.
18 Rodriguez is pointing to with reference to
19 plaintiff's number three.
20 A. It would be here but you couldn't see it.
21 THE COURT: Here meaning? Meaning?
22 THE COURT INTERPRETER: On the top.
23 THE COURT: Okay.
24 A. You can't see it because it's standing up.
25 Q. So it would cover inside of the kettle

526
2 where the blades were, is that right?
3 A. Yes.
4 Q. Now at the time of your accident had a
5 grate been in position would you have been able to
6 stick your hand into the blades?
7 A. No.
8 Q. Now, you spoke about a lever which was
9 there at the time of the accident, but it was not
10 in the inspection video that you saw earlier?
11 A. Yes, they changed it.
12 Q. Who changed it?
13 A. Don't know.
14 Q. Do you know how it was changed or why it
15 was changed?
16 A. Uhm, I don't know. I would think to make
17 it look differently.
18 Q. And the lever controlled the direction of
19 the blades?
20 A. It was to tilt, if I recall correctly, to
21 tilt make it go around.
22 Q. And when you say they removed the lever,
23 who are you talking about?
24 A. The people at the company.
25 Q. Ferrara?
527
2 A. Who has the machine? Ferraro.
3 Q. Do you remember how many other employees
4 were working at the factory that day?
5 A. There were six or seven. I don't recall.
6 Q. And how many machines other than the
7 dough mixing machine were at that factory?
8 A. The machine to make cannoli, the machine
9 that they put the oils so the cannoli goes through
10 and it comes out fried, ready.
11 Another machine to put the dough through.
12 There was another machine where you would
13 put the dough and you would entangle it. You would
14 have to entangle it and then you would put it in
15 the cannoli machine.
16 Q. So would you say there were approximately
17 five or six machines on the factory floor?
18 A. Where I was working I believe there were
19 five or six.
20 Q. And to your knowledge did anyone else
21 other than Ferrara make the changes to this dough
22 mixing machine that you've spoken about?
23 THE COURT INTERPRETER: To the dough.
24 Q. To the dough mixing machine that you've
25 spoke about?
528
2 A. I don't know.
3 Q. Now Mr. Rodriguez you testified earlier
4 that you had never helped clean the machine, that
5 dough mixing machine with a knife prior to the
6 date of the accident?
8 Q. Do you remember, as your case was going
9 on, you gave something called a deposition on
10 January 20th, 1997. Yes?
11 A. Yes.
12 Q. And at that deposition you were asked
13 questions about the accident by some attorneys and
14 Mr. Durst was present?
15 A. Yes.
16 Q. And after the deposition was done, you
17 eventually received a transcript which you looked
18 over and signed?
19 A. Yes.
20 Q. Do you recall at your position being
21 asked these questions and giving these answers?
22 THE COURT: Please give me the page
23 and lines and wait for me to review them.
24 MS. COTTES: Page 57, lines 8 through
25 23.
529
2 THE COURT: All right give me one
3 moment.
5 proceedings.)
6 THE COURT: Okay, go ahead
7 CROSS EXAMINATION
8 BY MS. COTTES: (Cont'd).
9 Q. "Question: On the Monday before your
10 accident did you clean the dough making
11 machine?
12 A. Yes.
13 Q. Answer: Yes.
14 Question: How did you clean the machine?
15 Answer: With a knife.
16 Question: What did you use the knife for
17 to scrape the dough away?
18 Answer: Yes, to scrape it away.
19 Question: Did you also use the knife to
20 scrape the steel blades?
21 Answer: Yes.
22 Question: When you cleaned the machine
23 at that point --
24 THE COURT: Sorry counsel you want to
25 finish that answer. Line 15.

530
2 MS. COTTES: I thought I said that.
3 I'm sorry, Judge.
4 Q. Answer: Yes to scrape it away.
5 Question: Did you also use the knife to
6 scrape the steel blades?
7 Answer: Yes.
8 Question: When you cleaned the machine at
9 that point had you turned the machine off
10 when you were scraping the blades and
11 scraping the inside of the machine?
12 THE COURT INTERPRETER: Slow down.
13 THE COURT: We have an excellent
14 interpreter but you need to slow down, all
15 right.
16 MS. COTTES: I'll break it up.
17 Q. Question: When you cleaned the machine,
18 at that point had you turned the machine off when
19 you were scraping the blades and scraping the
20 inside of the machine?
21 Answer: Yes."
22 Q. Mr. Rodriguez, does that refresh your
23 recollection that you did, in fact, use a knife
24 prior to the accident to clean the machine?
25 A. If it's there, I said it and it's true.

531
2 That's why I said before that I didn't remember,
3 that I didn't recall.
4 Q. Okay, and when you were working with this
5 dough mixer at Ferrara at the end of each day were
6 the employees required to clean the dough mixing
7 machine?
8 A. You had to clean it at the end.
9 Q. You did?
10 Is that a yes?
11 A. Yes.
12 Q. Now, did you ever see someone from
13 Ferrara actually making changes to this machine,
14 this particular dough mixing machine, while you
15 worked there?
16 A. The dough mixing machine?
17 Q. Yes.
18 A. No.
19 Q. I'm going to refer to your deposition
20 again that you gave on January 20th, 1997.
21 MS. COTTES: Page 38, lines 20 through
22 24.
23 I am so sorry. It's 20 through 25 and
24 on page 39, it's lines 2 through 13.
25 THE COURT: Sorry 2 through 15 ?

532
2 MS. COTTES: 2 through 13 on-line 39.
3 THE COURT: Just one moment, please.
4 Let me just review that.
6 proceedings.)
8 Q. Do you recall, Mr. Rodriguez, giving these
9 answers in response to these questions at your
10 deposition.
11 "Question: Between the time you started
12 working at Ferrara's and the date of your accident
13 on March 14th, 1995, did you see anybody make
14 changes to this machine?
15 Answer: I remember once. Yes.
16 Question: When was that?
17 Answer: A long time before. I don't
18 know. A long time before. I don't know.
19 Question: A long time before your
20 accident?
21 Answer: Yes.
22 Question: What did you see?
23 Answer: I think they were fixing an
24 electrical problem.
25 Question: Who was doing this?

533
2 Answer: I think it was some sort of an
3 associate of theirs.
4 Question: An associate of someone at
5 Ferrara?
6 Answer: I think they said that's what he
7 was at Ferrara."
8 Q. Mr. Rodriguez does that refresh your
9 recollection that you did see people at Ferrara or
10 employees of Ferrara making changes to this
11 machine prior to your accident?
12 Answer: Yes that is true but she told me
13 if somebody was making changes he wasn't making
14 changes he was repairing something electrically
15 that happened to the machine?
16 Q. So that was a repair that you were
17 referring to? The transcript?
18 A. Yes, can I say something. The machine was
19 working on it's own. And it cut out, it cut out by
20 itself the electricity stopped. The current
21 stopped.
22 Q. You talking about on that occasion that
23 you saw changes made?
24 A. I'm on my way to that. The machine
25 stopped. It didn't want to work. They sent us

534
2 home because the machine was not working. And they
3 had someone called those people so they could
4 repair it. But they didn't do any changes. They re
5 paired it that's different.
6 Q. On that occasion they re paired it.
7 A. Yes.
8 Q. And when you're speaking of they gain
9 you're speaking about father remember or employees
10 of Ferrara?
11 A. Someone from Ferrara question yes.
12 Q. By the way do you know who at Ferrara
13 bought and sold their machinery?
14 MS. SCOTTO: Note my objection.
15 There's no time frame.
17 Q. Prior to the accident?
18 MS. SCOTTO: Note my objection to
19 while he worked there?
20 Q. In the six months prior to the accident
21 that you were there ?
23 Q. Now, Mr. Rodriguez, you said that prior
24 to your accident -- on the day of your accident,
25 you had?
535
2 THE COURT: All right Miss Cottes is
3 this before or during? Which?
4 Q. On the day of the accident, in the hours
5 prior to the accident, you testified that you had
6 gone through the process you did with the machine
7 eight to ten times; is that right?
8 A. Yes.
9 Q. And you said that process included adding
10 ingredients, turning the machine on?
11 Q. Yes?
12 A. Yes.
13 Q. And then allowing the machine to work on
14 it's own for 15 minutes to 30 minutes?
15 A. Yes.
16 Q. And then you would take some of the dough
17 out; is that right?
18 A. When it was ready.
19 Q. And you did that same thing eight to ten
20 times?
21 A. Eight times. I don't remember. It's been
22 a long time.
23 Q. When you testified earlier today through
24 Mr. Durst that the accident happened around 3:30
25 or 4 o'clock?
536
2 A. 4:30.
3 Q. That was what I was going to ask you. I
4 was going to ask you if it was a little bit later
5 because you did say 4:30, later. It was closer to
6 4:30?
7 A. Um hum.
8 Q. Did the accident happen while you were
9 taking dough out from the last load?
10 You had done work on that day?
11 A. Yes, it was the last.
12 Q. And you were due to go home at five
13 o'clock?
14 A. Yes.
15 Q. Now, when you described lumps that were
16 left in the machine that you were trying to catch
17 at the time of the accident; is that right?
18 A. Yes.
19 Q. How large were those lumps?
20 A. Different sizes. Baseball. Bigger ones
21 and smaller ones.
22 Different measures.
23 Q. And would it be fair to say that at the
24 time of your accident there really weren't that
25 many left in the kettle of the machine?

537
2 A. They weren't a lot. The ones that were
3 there were underneath the blades.
4 Q. And you left the blades on to try to get
5 those seven or eight that remained; is that right?
6 A. Yes.
7 Q. Now while going through your cycle in the
8 eight to ten times prior that day you turned the
9 machine off, right?
11 Can I say something?
12 Q. Yes.
13 A. I don't know why the dough got that way.
14 Why it turned that way. It wasn't supposed to.
15 Q. Okay, well, do you remember at your --
16 strike that.
17 So is it your testimony that you're not
18 sure whether you turned the machine off in the
19 eight to ten times prior that day? That you did
20 the same thing?
21 A. I believe I turned it on and off.
22 Q. Mr. Rodriguez, I'm going to draw your
23 attention to a part of your a deposition?
24 MS. COTTES: Again page 62, line six
25 through ten.
538
2 THE COURT: Ten or 11? 62 did you
3 say, Miss Cottes?
4 MS. COTTES: 62, six through ten.
5 THE COURT: All right, six through
6 ten. Ten is a question.
7 MS. COTTES: Guess we can go.
8 THE COURT: Starting at 13 perhaps.
9 MS. COTTES: 6 through 17. Just so
10 it's clear.
11 MS. SCOTTO: Your Honor may --
12 THE COURT: Just one second six
13 through which line now 17.
14 MS. COTTES: Right.
15 MS. SCOTTO: Your Honor, just so that
16 it makes sense, I would ask that it be
17 read through 20.
18 THE COURT: All right let me just
19 have a moment here.
21 proceedings.)
22 THE COURT: Can I have counsel at
23 side bar?

539
3 the sworn jury.)
4 THE COURT: Can you read back the last
5 question and answer for me.
8 THE COURT: Okay with regard to lines
9 18 through 20, does Miss Scotto, you had
10 suggested to read through 20.
11 MS. SCOTTO: Yes.
12 MS. COTTES: That's fine.
13 THE COURT: Well, anything from you Mr.
14 Durst since you're sitting there not
15 saying anything.
16 MR. DURST: I've learned my lesson.
17 I'm going to keep quiet.
18 THE COURT: With regard to whether this
19 impeaches what he has just said?
20 MR. DURST: I don't think it does.
21 THE COURT: All right. Miss Scotto I'm
22 having difficult here because I don't
23 understand lines 18 through 20 vis a vis
24 your question, if you're looking to
25 impeach him with this line of -- of

540
2 questioning --
3 MS. COTTES: 18 through 20 no. My
4 application was to read 6 through 17. I
5 agree.
6 THE COURT: At line 17 he does
7 acknowledge that he would turn it off.
8 So your question was whether he would
9 turn it on or off during that time,
10 correct?
11 MS. COTTES: In the seven or eight
12 times he unloaded the machine before the
13 accident. It's really the exact question
14 that's six through eight.
15 THE COURT: But he did say that he did
16 turn it off, as far as I can see from 15
17 through 17. So I don't know where you're
18 looking to impeach with this line of
19 inquire.
20 Maybe I'm missing something. It's
21 been a long day, ladies and gentleman.
22 MS. COTTES: He testified that he
23 wasn't sure whether he turned it off in
24 the eighth or tenth time earlier that day.
25 THE COURT: Right.

541
2 MS. COTTES: So --
3 THE COURT: The last response if I'm
4 not mistaken as the Court Reporter read it
5 back was that he would turn it on and off
6 during the eighth hours. During the 8
7 times that he was using it. And looking at
8 lines 15 through 17 he would turn it on
9 and then whoa turn it off. I don't see
10 anything there with regard to your
11 question that's inconsistent with what he
12 just testified to.
13 MR. DURST: I think what happened
14 really was she misread the yes as being an
15 answer instead of a question. And that's
16 why she started this line of inquiry.
17 THE COURT: Misread yes where?
18 MR. DURST: Up on line ten. She
19 thought that was the answer yes but it
20 really is just the question.
21 THE COURT: Yes was a question at
22 line ten.
23 MR. DURST: She doesn't realize that
24 as she starts asking the question then
25 she --
542
2 THE COURT: Miss Cottes, do you see my
3 confusion with this line of inquiry
4 between lines 6 through 20 on the I EBT at
5 page 62?
6 I don't see any inconsistency with
7 what he just testified to. Now maybe the
8 EBT was not clear but I don't see any
9 inconsistency with what he had just
10 testified to here at trial.
11 MS. COTTES: Well, let me go out and
12 I'll ask him a different question and see
13 if I can clarify it without doing this.
14 THE COURT: I'm confused by lines 18
15 through 20.
16 I'm just going to suggest can we have
17 like one last question then we're going to
18 wrap for the day.
19 MS. COTTES: I really have, you know,
20 not that much more that I would --
21 THE COURT: I'm not going to, you
22 know, I'm looking at the jury. I don't
23 know if anyone is looking at the jury but
24 they've faded and I appreciate that you
25 want to finish your cross before we break.

543
2 MS. COTTES: Let me ask you this,
3 maybe this is a good point. I will stop
4 before asking him anything about damages.
5 I'm really at the end of what happened to
6 him at the time of the accident.
7 THE COURT: How much more do you
8 have?
9 MS. COTTES: Really not much.
10 THE COURT: And not much would be how
11 much ?
12 MS. COTTES: Ten minutes not even.
13 THE COURT: It's now a quarter to
14 five.
15 MS. COTTES: Five minutes.
16 THE COURT: If you're saying five
17 minutes, this is like the tail end of this
18 case and we usually break at quarter --
19 MS. COTTES: Five more minutes then
20 we'll break and --
21 THE COURT: I'm going to hold you to
22 five minutes because that's your audience,
23 all right.
24 (Whereupon, the following takes place in
25 open court, in the presence of the

544
3 THE COURT: All right, Miss Cottes,
4 five more minutes before break for the
5 day. All right.
6 THE COURT: All right with regard to
7 that line of inquire that's denied. Next
8 question.
9 CROSS EXAMINATION
10 BY MS. COTTES:
11 Q. Now, Mr. Rodriguez, you testified earlier
12 that the reason you left the blades on at the time
13 of your accident was that it forced the small
14 lumps or the medium size lumps up into the air so
15 you could grab them; is that right?
16 A. Yes.
17 Q. Did anyone at Ferrara every tell to you
18 remove the remaining small pieces of dough in that
19 way?
20 A. Hum, no one told me to but I observed the
21 person that used to operate the machine and that's
22 the way they used to do it.
23 Q. And who was that?
24 A. I don't remember his name.
25 Q. And was it part of your job to leave the

545
2 kettle completely empty before finishing for the
3 day?
4 A. Yes.
5 MS. COTTES: I think this is a good
6 breaking time, Judge. And we can pick up
7 on Monday.
8 THE COURT: Okay, thank you.
9 All right ladies and gentlemen, let me
10 say that you have been providing us with
11 service here. You all get gold stars for
12 today in my book and I will look in my
13 book later on to see how many gold stars
14 you guys get, all right.
15 All right, ladies and gentlemen, I
16 want to thank you profusely for paying
17 very careful attention and for your
18 dedicated service and commitment to this
19 trial.
20 We, as I explained to you,
21 preliminarily are not here Monday
22 mornings. So you guys can have all sorts
23 of fun on Sunday like go dancing, treat
24 your wives to a special night out on the
25 town even though it's not Mother's Day any

546
2 more gentlemen, okay. They would really
3 love it and tell them Judge Ruiz
4 recommended that. But, of course, you will
5 have to all make sure that you are
6 healthy, all right. I don't want anyone
7 coming in or calling in sick Monday
8 morning, all right. We need every single
9 one of you and we love having you here,
10 all right.
11 So everyone please just make sure you
12 be very careful this weekend, enjoy
13 yourselves but we want you back here
14 rested, wide-eyed and bushy-tailed by 2
15 o'clock ready to proceed. We anticipate a
16 full afternoon on Tuesday so please
17 everyone be here on time Monday morning --
18 Monday afternoon.
19 THE JUROR: Afternoon.
20 THE COURT: All right everyone. See I
21 did watch Letterman and O'Brian and all
22 those other folks last night, all right.
23 Please ladies and gentlemen don't
24 discuss the case amongst yourselves, with
25 anyone else. I know you may be tempted

547
2 to. I know your best friend maybe calling
3 you up an wanting a blow by blow account
4 of the trial but other than saying that
5 the lawyers dress very well, the
6 plaintiff's attorney could use better
7 ties, the Judge is really cute, other than
8 that you can't say anything else about
9 this case, ladies and gentlemen. Okay,
10 every one.
12 yourselves, with anyone, do not allow
13 anyone to discuss the case with you or in
14 your presence, if anyone attempts to do so
15 despite your telling them not to do so,
16 please bring it to my most immediate
17 attention first thing Monday -- afternoon
18 through my court staff and, obviously, you
19 will not go to the area in question out in
20 Brooklyn, all right everyone. I seriously
21 doubt that any of my Bronx people are
22 going to head out to foreign territory
23 known as Brooklyn.
24 All right, everyone. Have a good
25 weekend. Be safe. Enjoy your barbecues

548
2 and we'll see you back here Monday
3 afternoon at 2 p.m. every one. Have a safe
4 weekend everyone.
5 THE JURORS: All rise.
7 courtroom.)
8 THE COURT: When we were last in
9 Court's chambers, Mr. Durst you were
10 directed to have turned over to defense
11 counsel relevant sections of any and all
12 industrial codes, OSHA, ANSI or any other
13 regulations vis a vis the prospective
14 testimony of liability experts.
15 Did you do that?
16 MR. DURST: Yes, Your Honor, I did.
17 THE COURT: Counsel?
18 MS. SCOTTO: Yes.
19 THE COURT: You received that?
20 MS. SCOTTO: My office received a fax,
21 Your Honor.
22 MS. COTTES: My understanding is that
23 we did get a fax.
24 THE COURT: Okay.

549
2 (Whereupon the case is adjourned to
3 May 24th, 2004 for continued trial.)
4 * * * * *
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21
22
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25
550

COUNTY OF BRONX: CIVIL TERM PART IA-22
2 ----------------------------------------X
CIRRO RODRIGUEZ,
3
Plaintiff,
4 Index No.
-against-
5 16482/95
NATIONAL EQUIPMENT CORPORATION,
6
Defendant.
7 ----------------------------------------X
8
Third-Party Plaintiff,
9 Index No.
-against- 16482/95
10
FERRARA FOODS and CONFECTIONS, INC.,
11
Third-Party Defendant.
12 ----------------------------------------X
13 851 Grand Concourse

Bronx, New York 10451
14 May 24, 2004
15 B E F O R E:
16 HON. NORMA RUIZ, JSC, and a jury of six

plus two alternates.
17
19 FOR THE PLAINTIFF:

JOHN E. DURST, JR., EAQ.
20 285 Broadway
New York, New York 10007
21
22
FOR THE DEFENDANT: National Equipment Corporation
23 EUSTACE & MARQUEZ, ESQS.
1311 Mamaroneck Avenue
24 White Plains, New York 10605
BY: ROSE COTTER, ESQ.
25
551
1 FOR THE DEFENDANT: Ferrara Foods, Inc.

NEWMAN, FITCH, ALTHEIM & MYERS, P.C.
2 14 Wall Street
3 BY: FRANCINE SCOTTO, ESQ.
4
ELLEN RUBIN, RPR
5 Senior Court Reporter
-------------------------------------------------
7 takes place on the record, in the robing
8 room, in the presence of the Court and all
9 counsel and out of the hearing of the
10 jury.)
11 THE COURT: Ms. Scotto.
12 MS. SCOTTO: Your Honor, the
13 plaintiff's expert witness disclosure only
14 mentions the OSHA Industrial Code and the --
15 and ANSI, and you had instructed the plaintiff
16 last Tuesday to fax to us copies of the
17 sections that his expert intends upon using.
18 And what was received by my office was some
19 International Model Code and a New York State
20 Handbook.
21 These are not items that were
22 mentioned in the expert witness disclosure and
23 I ask that the witness be precluded from using
24 that.
25 MR. DURST: The handbook contains the

552
Proceedings
1 industrial codes and that's -- those are the
2 codes that he is going to refer to and that's
3 why -- what we indicated in 1929 industrial
4 codes, that's what we said in our expert
5 disclosure.
6 THE COURT: What does the handbook
7 refer to, what codes in particular?
8 MR. DURST: It refers to industrial
9 codes that --
10 THE COURT: Particular sections?
11 MR. DURST: Particular sections, but
12 it -- what it is, it's a compendium, I believe
13 it's a compendium of a bunch of different codes
14 relating to safety that was published in 1929.
15 And one of the provisions refers specifically
16 to dough mixers.
17 THE COURT: So within that handbook
18 there are provisions referring specifically to
19 dough mixers and sections that apply to a dough
20 mixer as apart from any other provisions in
21 that handbook which relate to any and all
22 machines that there might be out there in the
23 world, is that what you are saying to me?
24 MR. DURST: Exactly, your Honor.
25 THE COURT: And Ms. Scotto, you

553
Proceedings
1 received that, the name of that handbook or --
2 MS. SCOTTO: Thursday, the name of
3 the handbook and those sections, but that's not
4 what is in the expert witness disclosure.
5 THE COURT: We have already gone
6 through this. I have already ruled on that so
7 that's denied.
8 Right now I'm not precluding because
9 you have gotten the information in advance of
10 this particular witness' testimony and
11 certainly in advance of your expert's
12 testimony.
13 What else?
14 MS. SCOTTO: Your Honor, will the
15 witness be precluded from talking about the
16 OSHA inspection and the OSHA report, because
17 they are not in evidence and Ferrara Foods is
18 the third-party defendant. The plaintiff has
19 no direct claim against them and OSHA only
20 applies to the third-party defendant.
21 MR. DURST: OSHA is not a rule which
22 binds the employers. It is a rule book which
23 employers -- that manufacturers use in
24 designing machinery, therefore, it is a
25 standard that is an acceptable, an accepted

554
Proceedings
1 rule by which all manufacturers make machines;
2 that is, they make a machine with a cover on
3 it. And the expert will use OSHA regulations
4 as part of the basis of his opinion in telling
5 the jury how a machine should be designed.
6 MS. SCOTTO: The only OSHA section
7 that I saw in the OSHA report that you gave to
8 me talk about machines other than the dough
9 mixing machines and it talks about a lock-out
10 or a tag-out procedure, which does not relate
11 to the design of the machine. That claim has
12 to be against the defendant and that doesn't
13 apply. As far as the cover, that's something
14 different.
15 THE COURT: Anything further?
16 MR. DURST: No, your Honor.
17 THE COURT: Anything further from
18 you?
19 MS. SCOTTO: No.
20 THE COURT: Ms. Cotter?
21 MS. COTTER: No.
22 THE COURT: My ruling is still the
23 same and if it applies to the defendant, I'm
24 sure the defendant will do whatever the
25 defendant needs to do with regard to the

555
Proceedings
1 third-party defendant. All right.
2 So with regard to the photographs
3 that, Ms. Cotter, you first came in here to
4 discuss, those being the blowups designated as
5 A, B and C at the EBT of Mr. Miguel Rogel,
6 R-O-G-E-L, on August 18, 1997, there are
7 blowups that were utilized for that deposition
8 and I believe there are also five by seven
9 photographs used, I believe, at the same EBT
10 and marked in the same manner.
11 The five by sevens were proffered by
12 you, Ms. Scotto, for the Court to seek to
13 utilize them at this point by having the court
14 reporter superimpose markings on them to
15 reflect A, B and C in the same manner, but just
16 change the date to today's date.
17 We had discussed when we had our
18 both -- well, when we had our off-the-record
19 discussion, since I don't believe we put on the
20 record those discussions that we had when we
21 reviewed the EBT testimony of Mr. Rogel, which
22 is the basis for my rulings on the video since
23 he will be -- these are EBT testimony that was
24 taken down at the videotaping of that EBT.
25 The blowups of A, B and C apparently

556
Proceedings
1 someone of you, I believe Ms. Cotter, was
2 looking to introduce them into evidence. And
3 since they were blowups that were marked at the
4 EBT that was videotaped of Mr. Rogel, in order
5 to keep his testimony consistent with the
6 evidence that we are going to -- which you are
7 going to be seeking to admit today, we will
8 keep the blowups and the five by sevens the
9 same; that is, A, B and C. So there will be no
10 confusion with regard to his testimony at the
11 EBT that was videotaped and the admission of
12 these five by sevens for today's portion of the
13 balance of Mr. Rodriguez's, I guess,
14 cross-examination.
15 Is that what you are looking to do
16 with the five by sevens?
17 MS. COTTER: Yes. I will be able to
18 use that copy, once we mark it of today's date,
19 of these two witnesses if needed.
20 THE COURT: You mean the plaintiff?
21 MS. COTTER: And/or the expert.
22 THE COURT: The liability expert?
23 MS. COTTER: Yes.
24 THE COURT: Yes.
25 MS. COTTER: I cannot use my blowup

557
Proceedings
1 yet though, even though it looks exactly the
2 same?
3 THE COURT: Let me just see
4 something.
5 MS. COTTER: It's just easier for the
6 jury to see. It's just easier.
7 THE COURT: The only problem with the
8 blowup is that it has the court reporter's
9 markings on them in a much larger size than the
10 markings that are on the five by sevens.
11 Now, what she could do is just show
12 them the blowups and then when I give them the
13 evidence it's the same thing. I will just
14 explain to them that one was utilized at the
15 EBT and other one we are just utilizing here in
16 the courtroom.
17 MS. COTTER: That's fine. I have no
18 problem with that.
19 MS. SCOTTO: Could I just note for
20 the record I was just offering those photos, I
21 just want that to be clear, it was Ms. Cotter
22 that offered this after you had that. I had
23 objected with respect to Mr. Miguel's
24 deposition and that was overruled.
25 THE COURT: Unless you are telling me

558
Proceedings
1 you don't want us to use this at this point for
2 the purpose of being received into evidence.
3 MS. SCOTTO: That's fine.
4 THE COURT: I didn't mean to suggest
5 that you were offering them into evidence, but
6 you were giving them to the Court to use if we
7 need them for this afternoon's portion of the
8 testimony.
9 MS. COTTER: So that I'm clear, if
10 I'm using them for witnesses this afternoon, I
11 can show them what has been deemed admitted
12 Defendant's A, B and C?
13 THE COURT: I just don't want there
14 to be a confusion with regard to the dates.
15 Because obviously, ordinarily, whenever I have
16 premarked photographs, I will have my court
17 reporter superimpose the markings for the
18 proceedings at hand, not utilizing any marking
19 for an EBT, let's say.
20 MS. COTTER: So at the end of trial
21 you will just change the date and explain to
22 the jury.
23 THE COURT: No. With regard to that,
24 since -- with regard to the blowups, since the
25 witness on the videotape will not be available

559
Proceedings
1 here in court, but will be testifying with
2 regard to the markings at the videotape, we
3 will use the blowups as if he were here in the
4 courtroom. In other words, the videotape will
5 probably show the blowup. But when the
6 videotape is showing the blowup at least the
7 jurors will have the blowup available as well.
8 MS. COTTER: Yes, okay.
9 MS. SCOTTO: I just want to make sure
10 I understood your ruling.
11 There is no mention of OSHA?
12 THE COURT: As I ruled, to the extent
13 that you have gotten the information that I
14 said I was going to have available to both you
15 and Ms. Cotter, because the 3101(d) did not
16 have specific sections, that's what you have.
17 If the -- I don't know what the expert's
18 testimony will be. But whatever the expert's
19 testimony is with regard to what the standards
20 in the industry are, you are on notice as to
21 what he will testify and this will facilitate
22 your work with your particular expert for that
23 expert's testimony.
24 We are dilly-dallying. It's five
25 after three.
560
Proceedings
1 MS. SCOTTO: There is no mention of
2 the OSHA report, the actual OSHA report? I
3 think this witness reviewed the OSHA report,
4 but it's not in evidence.
5 THE COURT: It's not in evidence and
6 as I understand that's not coming into
7 evidence, correct, Mr. Durst?
8 MR. DURST: No.
9 THE COURT: And there will be no
10 mention of a report that's not in evidence,
11 correct?
12 MR. DURST: The expert can't mention
13 anything about the fact that he reviewed the
14 OSHA report?
15 THE COURT: Do you have the maker of
16 that report available?
17 MR. DURST: No.
18 THE COURT: If you have the maker of
19 that report to testify, that's different. But
20 a report that is not in evidence is hearsay and
21 this expert cannot discuss hearsay.
23 MR. DURST: Okay.
24 MS. COTTER: The only other issue,
25 Judge, is there already is a marked Defendant's

561
Proceedings
1 A, B, C and D. Isn't that going to cause any
2 confusion?
3 THE COURT: We will change that later
4 and A, B, C I'm reserving decision because I
5 may need to withdraw that from evidence. So
6 this will go A, B, C just the same way as it is
7 here.
8 (Three photographs were marked
9 Defendant's Exhibit A, B and C in
10 evidence.)
11 (Whereupon the following takes place
12 on the record in open court in the hearing
13 and presence of the jury.)
15 All rise.
16 THE COURT: Good afternoon, ladies
17 and gentlemen. Hope everyone have had a good
18 weekend. Have a seat. And obviously, we were
19 a little delayed with legal issues, so we
20 apologize.
21 All right, we were on
22 cross-examination by Ms. Cotter. You may
23 continue.
24 MR. DURST: Your Honor, may I just
25 make one quick request?

562
Proceedings
1 THE COURT: Side bar.
2 (Discussion held off the record at
3 side bar.)
4 THE COURT: Mr. Rodriguez, once again
5 good afternoon, sir.
7 THE COURT: Mr. Rodriguez, I'm going
8 to ask you, sir, to speak nice and loudly,
9 because today is Monday and I still haven't had
10 my sufficient coffee, ladies and gentlemen. I
11 haven't had enough coffee today. So I don't
12 hear too good when I don't have enough coffee.
13 So I need for you to speak up so loud
14 that I will wish that I had had my coffee, how
15 is that? All right, Mr. Rodriguez?
17 THE COURT: You have to project all
18 the way out to the hallway. Do you understand?
20 THE COURT: I didn't hear that yes.
21 Do you understand?
22 THE WITNESS: Si.
23 THE COURT: A little louder.
24 THE WITNESS: Si.
25 THE COURT: Much better.

563
Proceedings
1 Ms. Cotter, you may proceed.
2 Ladies and gentlemen, just for your
3 edification, counsel and the Court had engaged
4 in legal issues and there are certain items
5 that have been received in evidence outside
6 your presence. And again, let me remind you, I
7 will publish to you most of the items in
8 evidence before you retire for your
9 deliberations.
10 All right, ladies and gentlemen?
11 Okay. All right, Ms. Cotter, you may proceed.
12 MS. COTTER: Thank you, Judge.
13 C I R R O R O D R I G U E Z, having been
14 previously duly sworn (through the interpreter)
15 took the witness stand and continued to testify
16 as follows:
17 CROSS-EXAMINATION
18 BY MS. COTTER:
19 Q. Good afternoon, Mr. Rodriguez.
21 Q. I'm going to be showing you three
22 photographs which have been marked as Defendant's A,
23 B and C in evidence. Now, with respect to each of
24 them, starting with Defendant's A, if you could just
25 hold it forward and tell us if you recognize what is

564
Cirro Rodriguez - for Plaintiff - Cross (Cotter)
1 in Defendant's A.
2 THE COURT: Let's just do something
3 because I see that in the back Mr. Caputo, you
4 are straining. I'm going to ask Ms. Cotter,
5 why don't you just move a little bit. We are
6 going to have Mr. Rodriguez in the well of the
7 courtroom.
8 All right, Mr. Rodriguez, actually
9 you know what, I'm going to bring -- my officer
10 is going to bring out an easel. We will put
11 the photographs on the easel and put them as
12 close to the jury as possible so everyone gets
13 to see what is in evidence.
14 Let's just move it close to the jury
15 box. And counsel at the counsel bench, if you
16 wish to stand at the side of the jury box so
17 you can see, you are welcome to do so.
19 THE COURT: Mrs. Cotter.
20 Q. Mr. Rodriguez, do you recognize what is in
21 Defendant's A?
22 A. This machine where I had my accident.
23 Q. And does that machine have a safety grate
24 on or off?
25 A. Yes.
565
1 Q. But you have testified at the time of your
2 accident that safety grate was off, correct?
3 A. It didn't have it.
4 Q. And sometime prior to your accident you
5 did see it on that machine, correct?
6 A. I believe so.
7 Q. And you have testified earlier that you
8 don't know who from Ferrara Foods removed that
9 safety grate; is that right?
11 Q. I draw your attention to Defendant's C.
12 Do you recognize what is in that picture?
13 A. Yes.
14 Q. And what is that?
15 A. It's the same machine.
16 Q. Is that just a closer picture, closer up
17 of Defendant's A?
18 A. Yes.
19 Q. And I draw your attention to Defendant's
20 B. Do you recognize what is in that photograph?
21 A. Yes.
22 Q. Could you tell us what is in that photo?
23 A. That's the switch to turn it on and off.
24 Q. Indicating the upper panel of buttons.
25 A. Yes. At that time these buttons weren't

566
1 there.
2 Q. At which time, before the accident or
3 after the -- or at the time of the accident or some
4 other time?
5 A. When my accident occurred.
6 THE COURT: For the record, what does
7 these bottom ones refer to?
8 Q. Do you know what the bottom panel of
9 buttons was for?
10 A. No.
11 Q. Prior to your accident, did you ever see
12 the bottom panel of buttons?
13 A. These?
14 Q. Yes.
15 A. No.
16 Q. When did you first see them?
17 A. When I went with my lawyer, I don't
18 recall.
19 Q. Was that before or -- how long after the
20 accident was that?
21 A. I don't recall, three months, a month. I
22 don't recall.
23 Q. When you went to the inspection that we
24 have seen a video of, of the machine, was that
25 second lower panel of buttons there at that time?

567
1 A. I believe so.
2 Q. Do you know if there were actually buttons
3 inside the lower panel of Exhibit B or are these
4 openings where buttons have been removed?
6 Q. Do you know if someone from Ferrara
7 removed a panel like depicted in the lower portion
8 of Exhibit B before the accident?
9 A. I don't know.
10 Q. Do you know who, if anyone, from Ferrara
11 put this lower panel of buttons on this machine
12 after your accident?
13 A. I don't know.
14 Q. Do you know if the lower panel of buttons
15 includes buttons which stop the blades when the bowl
16 of the machine is moved from the horizontal mixing
17 position to the vertical position that it was in at
18 the time of your accident?
19 A. I don't know.
20 Q. Are you aware of any time where anyone
21 from Ferrara disconnected the buttons on that lower
22 panel?
23 A. I don't know.
24 Q. Okay. Nothing further with the
25 photographs for now.

568
1 Mr. Rodriguez, have you had any
2 occupational therapy?
3 A. Now or before?
4 Q. Since the accident.
5 A. When I went to the hospital, only when I
6 went to the hospital.
7 Q. How long did you have it at the hospital?
8 A. I don't recall. Well, three months. I
9 don't recall.
10 Q. After that time did any doctor recommend
11 that you have more?
12 A. No.
13 Q. When was the prosthetic that's in evidence
14 prescribed to you?
15 A. When did I get it?
16 Q. Yes.
17 A. November 1997.
18 Q. And have you tried any other prosthetics
19 other than that one?
20 A. No.
21 Q. Have you asked your doctors about any
22 others?
23 A. No.
24 Q. Other than when you stated it's cold
25 outside or it's bad weather, do you have any pain in

569
1 the remaining stumps on your hand?
2 A. When it's cold, yes.
3 Q. Other than when it's cold, do you have it?
4 A. Sometimes.
5 Q. And can you grasp anything at all with
6 your pinky to the remaining portion of your thumb?
7 A. Yes.
8 Q. Can you give me some examples of what you
9 can do with that grasp?
10 A. Pencil, spoon, a fork, utensils.
11 Q. Anything else?
12 A. No.
13 Q. You stated on direct examination that you
14 have made attempts to find work; is that right?
15 A. Yes.
16 Q. When was the last time you tried to find
17 some work?
18 A. Two years ago.
19 Q. And how did you go about attempting to
20 find work two years ago?
21 A. I don't understand the question.
22 Q. How did you go about trying to find work
23 two years ago; did you go to an agency? Did you go
24 out looking at ads in the paper or something
25 different?
570
1 A. I would go in person to factories and
2 grocery stores, bodegas and I would look for ads in
3 the paper.
4 Q. And you haven't made those attempts in the
5 last two years?
6 A. No, I got tired.
7 Q. So presently you are not looking for work?
8 A. No.
9 Q. Just one other question about the
10 photographs you looked at earlier. The lever that
11 you stated was on the machine, was that depicted in
12 the photographs?
13 A. No.
14 Q. And was it there at the time of your
15 accident?
16 A. Yes.
17 Q. And you told us earlier that that
18 controlled the movement of the blades; is that
19 right?
20 A. It would make the drum turn.
21 Q. When you mean turn, do you mean different
22 from tilting?
23 A. The same.
24 Q. And it wasn't there on the day of your
25 accident or it was there on the date of your

571
1 accident?
2 A. It was there.
3 MS. COTTER: I have nothing else.
4 Thank you.
5 THE COURT: Mrs. Scotto.
6 MS. SCOTTO: Thank you, your Honor.
7 CROSS-EXAMINATION
8 BY MS. SCOTTO:
9 Q. Good afternoon, Mr. Rodriguez.
11 Q. My name is Francine Scotto.
12 THE COURT: Mr. Rodriguez, first I
13 need you to take your hands away from your
14 face. I know you are fidgeting. And again,
15 speak up nice and loud. All right? Thank you.
16 Ms. Scotto.
17 Q. Mr. Rodriguez, I represent Ferrara Foods.
18 Mr. Rodriguez, you came to the United
19 State in 1994; is that correct?
20 A. Yes.
21 Q. How was it that you came to work at
22 Ferrara?
23 A. My cousin told me that they needed someone
24 there.
25 Q. Your cousin worked at Ferrara?

572
Cirro Rodriguez - for Plaintiff - Cross (Scotto)
1 A. Yes.
2 Q. And your job at Ferrara was to do work
3 wherever you were needed; is that right?
4 A. Yes.
5 Q. When you worked at Ferrara that was your
6 only job at that time; is that right?
7 A. Yes.
8 THE COURT: I'm sorry, Mr. Rodriguez.
9 You said something else. The court interpreter
10 is asking you to say what you said because she
11 didn't hear you.
12 A. I let my part-time job go.
13 Q. Answer was I let my part time job go?
14 Thank you.
15 During the entire time that you worked at
16 Ferrara Foods you knew how to turn that dough mixing
17 machine on and off; is that right?
18 A. Yes.
19 Q. Mr. Rodriguez, when I talk about Friday,
20 could we agree I'm going to be talking about the
21 Friday before your accident?
22 A. Yes.
23 Q. And Monday was the day before your
24 accident?
25 A. Yes.
573
1 Q. Is it your testimony that other than
2 turning the machine on and off and taking the dough
3 from the mixing machine to another machine, that you
4 never worked on the dough mixing machine before
5 Friday?
6 A. Yes.
7 Q. Is it your testimony that the first time
8 you ever poured ingredients into that machine was on
9 Friday?
10 A. Yes.
11 Q. Mr. Rodriguez, isn't it true that you
12 worked on that machine pouring ingredients into it
13 two months before the accident?
14 A. I didn't put them in, I would give them to
15 someone who would add them.
16 Q. Mr. Rodriguez, do you recall testifying at
17 your deposition?
18 A. Yes.
19 Q. And you swore to tell the truth at that
20 time?
21 A. Yes.
22 MS. SCOTTO: Your Honor, I'm looking
23 at page 45.
24 THE COURT: Have we established the
25 date of the deposition?

574
1 Q. Do you recall testifying in your
2 deposition on January 20, 1997?
3 A. Yes, it's been a long time.
4 Q. And at that time Mr. Durst was present
5 with you?
6 A. Not him.
7 Q. Was there another lawyer present?
8 A. Yes.
9 Q. Is that lawyer present in the courtroom?
10 A. Yes.
11 Q. Where is he?
12 A. There.
13 MS. SCOTTO: Witness is pointing to
14 Mr. Bersin.
16 MS. SCOTTO: Your Honor, looking at
17 page 45, lines 11 through 15.
18 THE COURT: Let me just read that.
19 All right I will allow it.
20 Q. Mr. Rodriguez, do you remember being asked
21 this question and giving this answer?
22 "QUESTION: How long before your accident
23 of March 14, 1995 did you do this when you
24 first poured in the ingredients?
25 "ANSWER: Just before the accident maybe

575
1 two months before."
2 Do you remember being asked that question
3 and giving that answer?
4 A. I don't recall, it's been a long time.
5 Q. You did have an opportunity to look at
6 your deposition transcript; isn't that right?
7 A. Yes.
8 Q. And when Ms. Cotter questioned you, you
9 said you read your transcript and you signed it;
10 isn't that right?
11 A. Yes.
12 Q. You never made a change to those lines;
14 A. No.
15 Q. So does that refresh your recollection as
16 to when you first worked on that machine?
17 A. Yes.
18 Q. So is it your testimony you worked on the
19 machine two months before the accident?
20 A. If it's there, I said it.
21 Q. When you worked on this machine on Friday,
22 you removed dough from the machine; is that right?
24 MS. SCOTTO: I'm going to refer to
25 page 53 of the transcript, your Honor, lines 20

576
1 through 23.
2 THE COURT: That's 53?
3 MS. SCOTTO: Page 53, lines 20
4 through 23.
6 Q. Do you recall being asked this question
7 and giving this answer:
8 "QUESTION: On the Friday before did you
9 unload any of the dough out of the machine?
10 "ANSWER: I took some dough out of the
11 machine, yes, then I had to put it into the
12 other machine."
13 Do you recall being asked that question
14 and giving that answer?
15 A. Like I said before, if it's there I said
16 it.
17 Q. Does it refresh your recollection as to
18 the fact that you removed dough from the machine on
19 Friday?
20 A. Yes.
21 Q. And on Friday, you turned the machine off
22 before you removed dough; isn't that right?
25 at page 53, line 24 through page 54, line 17.

577
3 Q. "QUESTION: How did you take the dough out
4 of the machine on Friday before?
5 "ANSWER: It had a lot of dough in the
6 machine and I was taking it out. First I
7 turned it on so that it would mix it and it
8 would not be dry, so that it was still kind of
9 humid, moist and once it was more wet, then I
10 put my hand in and started taking it out.
11 "QUESTION: Moist, was that what you meant?
12 Were you standing on a stepladder at this time?
13 "ANSWER: Yes.
14 "QUESTION: Had you shut the machine off
15 before you put your hand in to take the moist
16 dough out?
17 "ANSWER: Yes, it was already off.
18 "QUESTION: Who turned it off?
19 "ANSWER: I had turned it off."
20 Mr. Rodriguez, do you recall being asked
21 those questions and giving those answers?
22 A. Yes.
23 Q. Does that refresh your recollection as to
24 the fact that you turned the machine off on Friday
25 before you took the dough out?

578
1 A. Yes.
2 Q. Mr. Rodriguez, the machine was emptied or
3 cleaned at the end of every day; is that right?
4 A. Yes.
5 Q. So whoever worked on the machine had to
6 leave it empty at the end of the day?
7 A. Yes.
8 Q. And it's your testimony that you worked on
9 that machine the entire day on Monday; is that
10 right?
11 A. Yes.
12 Q. So you left the machine empty on Monday at
13 the end of the day; is that right?
14 A. Yes.
15 Q. So you cleaned the machine on Monday
16 before you left?
18 Q. On Monday you used a knife to clean the
19 blades of the machine; isn't that right?
20 A. Yes.
21 Q. And on Monday you turned the machine off
22 before you cleaned it; isn't that right?
23 A. Yes, you have to clean the blades and you
24 cannot clean the blades with the machine on.
25 Q. So you turned the machine off before you

579
1 cleaned it?
2 A. Yes.
3 Q. And on Tuesday you removed dough from the
4 machine somewhere between eight and ten times; is
5 that right?
6 A. Yes.
7 Q. You were trained how to operate that dough
8 mixing machine by Pedro, the gentlemen known as
9 Miguel Rogel, sometime before your accident?
10 A. He did not show me.
11 Q. Did Pedro ever show you how to clean the
12 machine before your accident?
13 A. No, somebody else.
14 Q. Isn't it true that you were trained by a
15 co-worker at Ferrara sometime before your accident
16 to never put your hands into the mixing bowl while
17 the machine was still on?
18 A. Yes.
19 Q. And you received that training from a
20 co-worker you said; isn't that right?
21 A. Yes.
22 Q. And you were trained by a co-worker by the
23 name of Ramon to turn the machine off before
24 scraping the dough from the blades; isn't that
25 right?
580
1 A. Yes.
2 Q. On Tuesday, when you removed the dough
3 from the machine, during those eight to ten times,
4 you shut the machine off first?
5 A. I would turn if on and off.
6 Q. What do you mean you turned it on and off?
7 A. When it had the dough inside I would turn
8 it on so it would expel the dough and sometimes with
9 the knife I would cut pieces of dough and I would
10 put it in the container.
11 Q. When did you shut the machine off?
12 A. As I said, I would turn it on and off.
13 Q. Let me ask the question this way,
14 Mr. Rodriguez. On Tuesday, when you removed dough
15 from the machine during those eight to ten times,
16 you shut the machine off when there was a small
17 amount of dough in the machine, at a minimum you did
18 that; isn't that right?
19 A. It was easier for me for the machine to be
20 on so I could grab the dough in the air, when it was
21 a small amount.
22 Q. So your answer is then when there was a
23 small amount of dough in the machine on Tuesday you
24 left the machine on to remove it?
25 A. Yes.
581
2 at page 62, lines 6 through 20.
3 May I, your Honor?
4 THE COURT: No.
5 Q. Mr. Rodriguez, your accident happened
6 around the end of the day, it was around 4:30?
7 A. Yes.
8 Q. And that was the last load of the day so
9 you had to leave the machine empty; is that right?
10 A. Yes.
11 Q. So at the time of your accident you were
12 cleaning out the machine to leave it empty?
13 A. I wasn't cleaning it, I was removing the
14 dough.
15 Q. And that was the dough from the last load
16 of the day; isn't that right?
17 A. Yes.
18 Q. Where was Pedro's office in relation to
19 the dough mixing machine on the date of your
20 accident?
21 A. The machine is where I'm at, for example,
22 and his office was at the end of the factory.
23 Q. Where you were on the machine --
24 THE COURT: Just let's for the
25 record, what is that distance? Can you

582
1 estimate the distance?
2 THE WITNESS: 40-meters. More, don't
3 know.
4 Q. When you were standing on the stool at the
5 time of your accident, if you were facing the mixing
6 machine, what was behind it? Was there a wall, a
7 window, another machine or something else?
8 A. There was a wall.
9 Q. If you were standing on the mixing
10 machine, standing -- standing on the stool facing
11 the mixing machine, could you see Pedro's office?
12 A. Yes.
13 THE COURT: Facing in which
14 direction?
15 MS. SCOTTO: If he was standing on
16 the stool facing the mixing machine.
17 THE COURT: Facing the machine?
18 Okay.
19 A. He could see me and I could see him. I
20 would have to turn back.
21 Q. So you had -- if you were standing on the
22 stool facing the mixing machine you had your back to
23 Pedro's office?
24 A. Yes.
25 Q. At the time of your accident was Pedro in

583
1 his office?
2 A. Yes.
3 Q. When was the last time you looked back and
4 saw him in the office before your accident?
6 Q. Are you not sure -- I'm sorry.
7 A. I didn't have time to be looking at him, I
8 was busy working all day.
9 Q. So you don't know where he was at the time
10 of your accident?
11 A. He was in his office.
12 Q. Could you see him?
13 A. All the workers could see him. It wasn't
14 an office, he had a desk.
15 Q. But you couldn't see what was behind you;
17 A. I don't understand.
18 Q. If you were facing the machine you
19 couldn't see what was behind you; isn't that right?
20 A. No.
21 Q. Mr. Rodriguez, at the time of your
22 accident, you were removing the balls of dough that
23 remained in the machine; is that right?
24 A. Yes.
25 Q. And there wasn't much dough left?

584
1 A. No.
2 Q. So you were standing on the stool and you
3 were looking into the machine and you saw the balls
4 of dough before your accident; is that right?
5 A. Yes.
6 Q. And those balls of dough were the size of
7 baseballs?
8 A. Different sizes, yes.
9 Q. What sizes were they?
10 A. A little bigger than a baseball; smaller;
11 smaller still.
12 Q. At the time you were standing on the stool
13 looking into the machine before your accident, you
14 knew that the machine had blades, right?
15 A. Yes.
16 Q. And you knew that they were turning; is
17 that right?
18 A. Yes.
19 Q. In fact, that machine makes noise when
20 it's on; is that right?
21 A. Yes.
22 Q. So right before your accident you knew the
23 machine was on, right?
24 A. Yes. It was easier for me to take the
25 dough out with the machine on. When it was off I

585
1 couldn't take out the balls. I was afraid if I
2 stuck both my arms in there, the machine will go on
3 by itself.
4 Q. Mr. Rodriguez, isn't it true that you
5 never had a problem with the blades going on by
6 themselves before the date of the accident?
7 A. No.
9 at page 67, line 22 through 24 then on to
10 page 68, lines 2 through 5.
11 THE COURT: Okay. Go ahead.
12 MS. SCOTTO: I didn't hear your
13 ruling.
16 Q. "QUESTION: Prior to your accident, did
17 you ever observe or have any problem with the
18 machine turning off and on by itself?
19 "ANSWER: When I was working?
20 "QUESTION: Yes.
21 "ANSWER: When I was working I didn't have
22 that problem."
23 Do you recall being asked those questions
24 and giving those answers?
25 A. If it's there, yes.

586
1 Q. Isn't it true, Mr. Rodriguez, you never
2 had a problem with the machine turning itself on?
3 A. No, I saw once where the machine was
4 working and then it went off by itself.
5 Q. The machine went off by itself?
6 A. Yes.
7 Q. Did you ever see an instance where the
8 machine went on by itself?
9 A. No.
10 Q. Isn't it true that the machine never
11 spontaneously turned itself on?
12 A. No.
13 Q. That's not true?
14 A. It never went on by itself, no.
15 Q. Mr. Rodriguez, the type of work that you
16 looked for after this accident was in grocery stores
17 and you said factories; is that right?
18 A. Bodegas.
19 Q. And did you say factories before?
20 A. At that time I was looking for work in
21 bodegas, grocery stores.
22 THE COURT: I'm sorry, was that
23 before the accident your question?
24 MS. SCOTTO: I asked him after but I
25 think I may need to clarify.

587
1 THE COURT: Yes.
2 Q. Mr. Rodriguez, after the accident, the
3 places that you looked for work were grocery stores?
4 A. Yes.
5 Q. Did you look in any other type of place
6 for work?
7 A. No.
8 Q. And when did you look for work in those
9 grocery stores after the accident, what period of
10 time?
11 A. I believe it was five or six months, I
12 don't recall.
13 Q. Five or six months after your accident?
15 THE COURT: Ms. Scotto, why don't we
16 take a moment. We will take five minutes. I
17 see some of the jurors need to refresh
18 themselves a little bit. So we will take a
19 quick five minutes and we will be right back.
20 Please don't discuss the case with
21 anyone else or among yourselves. If anyone
22 attempts to discuss it with you, bring it to my
23 attention. Please don't speak to parties,
24 attorneys or witnesses. Quick five minutes.
25 (Brief recess is taken.)

588
1 (Witness left the stand.)
2 (Jurors exited the courtroom.)
3 (Witness resumed the stand.)
5 (Jurors entered the courtroom.)
7 gentlemen, everyone have a seat.
8 Everyone had an opportunity to splash
9 some cold water on your face and drink some
10 cold coffee that you might have had in the
11 back, yes?
12 MS. SCOTTO: May I proceed your
13 Honor?
14 THE COURT: Yes.
15 BY MS. SCOTTO:
16 Q. Mr. Rodriguez, is it your testimony that
17 on Tuesday, when you removed dough from the machine,
18 during those eight to ten times, that you did so
19 with the blades on when there was a small amount of
20 dough left?
21 A. Yes.
22 MS. SCOTTO: Your Honor, looking at
23 page 62 line 6 through 20.

589
1 Q. Do you recall being asked these questions
2 and giving these answers:
3 "QUESTION: During the seven or eight times
4 when you unloaded dough before your accident,
5 did you shut the machine off when you took the
6 dough out?
7 "ANSWER: Before removing the dough?
8 "QUESTION: Yes.
9 "ANSWER: The last time before the accident
10 or when?
11 "QUESTION: Every time during the seven or
12 eight times.
13 "ANSWER: When the machine was very full I
14 would take it out when it was still on and then
15 afterwards I would turn it off.
16 "QUESTION: When you say 'afterwards,' when
17 the amount of dough got lower?
18 "ANSWER: Yes."
19 Mr. Rodriguez, do you recall being asked
20 those questions and giving those answers?
21 A. Yes.
22 Q. Does that refresh your recollection as to
23 the fact that you shut the machine off at least
24 seven or eight times on the day of your accident
25 before your accident when the dough was low and you
590
1 removed it?
2 A. Yes.
3 Q. Mr. Rodriguez, do you drive?
4 A. No, but I do know how to drive.
5 Q. You know how to drive, that's my question?
6 A. Yes, with my left hand.
7 Q. And you said that you looked for work five
8 or six months after the accident. Did you say you
9 looked for work at any other time?
10 A. Two years ago.
11 Q. And for what period of time did you look
12 for work?
13 A. I don't recall, I don't remember.
14 Q. Did you look for a week, a month or
15 something else?
16 A. Months.
17 Q. How many months?
18 A. I'm not sure.
19 Q. Was it more than two months?
20 A. I believe so.
21 Q. Was it more than four months?
22 A. No.
23 Q. Mr. Rodriguez, from the time that you
24 arrived in the United States, it was always your
25 intention to return to Mexico; is that right?

591
1 THE COURT: All right, we are not
2 going to explore that. Let's move on.
3 MS. SCOTTO: I have no further
4 questions, your Honor.
5 MR. DURST: Very brief redirect, your
6 Honor.
8 BY MR. DURST:
9 Q. Mr. Rodriguez, how did the person who
10 showed you how to remove the dough remove the dough?
11 A. I watched them doing it in that fashion
12 with the machine on.
13 Q. Did you do anything differently than the
14 way he did it?
15 A. No, I don't recall.
17 your Honor.
18 THE COURT: Anything further
19 Ms. Cotter?
20 MS. COTTER: No, Judge.
21 THE COURT: Ms. Scotto on the
22 redirect?
23 MS. SCOTTO: Yes, Judge.
24 RECROSS-EXAMINATION
25 BY MS. SCOTTO:
592
Cirro Rodriguez - for Plaintiff - Recross (Scotto)
1 Q. Mr. Rodriguez, didn't you just tell us
2 that a co-worker told you to shut the machine off
3 before ever sticking your hand into it?
4 A. No, when you had to clean it.
5 MS. SCOTTO: Is there an answer,
6 Judge?
7 THE COURT: I don't think that the
8 question -- the court interpreter didn't get
9 the gist of the answer, so why don't you pose
10 the question one more time.
11 Q. Didn't you tell us today that a co-worker
12 told you to never put your hand into the machine
13 when the blades were on?
14 THE COURT: This is limited to
15 redirect. The question on redirect, that's
16 what I'm limiting you to.
17 MR. DURST: I will object to it on
18 those grounds, your Honor. Nobody is talking
19 about sticking their hand in the machine.
20 THE COURT: I'm limiting it to the
21 question on redirect, Mrs. Scotto.
22 Q. Mr. Rodriguez, were you cleaning the
23 machine or were you removing dough at the time the
25 THE COURT: I'm limiting it to

593
Cirro Rodriguez - for Plaintiff - Recross (Scotto)
1 redirect, the question on redirect,
2 Mrs. Scotto. That's not the question.
3 Q. Who was the person that told you or showed
4 you how to take the dough out?
5 THE COURT: Sustained as to that
6 question. Just the one question on redirect.
7 Q. Isn't it true that the coworker told you
8 when you removed the dough, to turn the machine off?
10 MS. SCOTTO: I have no further
12 THE COURT: You may step down,
13 Mr. Rodriguez. Counsel at side bar.
14 (Whereupon, there is a discussion
15 held off the record at the bench among the
16 Court, defense counsel and the assistant
17 district attorney.)
19 know it's Monday afternoon so rather than begin
20 with another witness and you guys had the look
21 of oh, boy, why me on Monday, so in other words
22 to refresh yourselves, and you're all very
23 good. I'm very glad to see you all bright and
24 shiny and healthy today. So we are going to
25 stop at this juncture. We can anticipate a

594
Proceedings
1 full day tomorrow and I'm going to ask you to
2 be here at 9:30 tomorrow morning.
3 Again, we anticipate a full day so
4 please as much as is possible, please try to be
5 here tomorrow everyone on time so we can get
6 started at 9:30. All right, everyone?
7 That being said, please do not
8 discuss the case amongst yourselves or with
9 anyone else. If anyone tries to talk to you
10 about the case, you bring it to my attention.
11 If you overhear anyone discussing the case,
12 bring that to my attention.
13 Please don't discuss this, don't
14 speak with any parties, attorneys or witnesses
15 or go to the area in question.
16 That being said, have a wonderful
17 balance of the afternoon. Have a wonderful
18 evening and we will see you tomorrow morning
19 promptly at 9:30.
20 All right everyone, have a good
21 night.
23 (Whereupon, court is recessed and the
24 case adjourned to Tuesday, May 25, 2004 at
25 9:30 a.m.)
595
bd Proceedings

COUNTY OF BRONX: CIVIL TERM: PART IA-22
2 - - - - - - - - - - - - - - - - - - - - - - - - - - -X
CIRRO RODRIGUEZ,
3 Plaintiff,
Index No.
4 -against- 16482/95
5 NATIONAL EQUIPMENT CORP., Cont'd Jury Trial
6 Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - -X
7 NATIONAL EQUIPMENT CORPORATION,
8 3rd Party Plaintiff,
9 -against-
10 FERRARA FOODS & CONFECTIONS, INC.

-----------------------------------------------------X
11 May 25, 2004
12
13 B E F O R E:
14
HONORABLE NORMA RUIZ,
15 Justice and a jury
16
(Appearances same as previously noted.)
17
* * *
18
19
21 outside the hearing of the jurors, who are in the jury
22 room. I asked if there were any administrative
23 matters that need to be dealt with before testimony
24 begins. Do you have anything?
25 MS. COTTER: Yes, Judge. We have an

596
bd Proceedings
1 objection to proposed exhibits by plaintiff's counsel.
2 What they appear to be are blowups of some safety
3 standards and provisions from a handbook on guidance
4 for machinery. Obviously, the doctor or -- yes, the
5 doctor, the engineer for the plaintiff was here to
6 testify about those and he can look down at a copy of
7 any codes or standards that are in his hand and talk
8 about them to the jury. There's no reason they need
9 to be blown up and then set in the back and then read
10 over and over again by the jury when the witness
11 really shouldn't be able to read them outright. So I
12 would object to those being in evidence.
13 MS. SCOTTO: Your Honor, I join in the
14 objection that the jury should not be read any
15 provisions unless they are read by the Court, and that
16 would be done during the charge. It's the Court's
17 domain to give statutes or guidelines to the jury, not
18 an expert.
19 MS. COTTER: In fact, these are only
20 guidance -- if you look through them, they're
21 handbooks that give general guidance suggestions to
22 machinery companies. They're not like OSHA, which are
23 federal regulations. That's another reason.
25 MR. DURST: Your Honor, these, this is the

597
bd Proceedings
1 1929 edition of the Handbook Of Industrial Safety
2 Standards. One of the provisions, the only provision
3 that the expert uses from that book is the dough mixer
4 provision, which was provided again to the defendants,
5 and it specifically states that a non-tilting type
6 dough mixer has one requirement and a tilting type has
7 another requirement since 1929.
8 The expert will base his opinion that the
9 machine was defective in part on these, on these
10 standards, and the provision of the tilting type
11 states that an interlocking device and cover so
12 arranged that the power cannot be applied to the
13 blades unless the cover is in place to the mixer is
14 required. Now, that is a provision which I believe
15 directly addresses the defect in the case and it is a
16 major, major item of notice to the defendants that an
17 interlocking device --
18 THE COURT: Right, I understand that. I
19 want you to address the argument that's been made.
20 MR. DURST: That the blowups are -- the
21 books themselves are here, the original books, and the
22 blowups are just so that the jury --
23 THE COURT: I understand what the blowups
24 are. I want you to address the argument that's been
25 made, Mr. Durst.

598
bd Proceedings
1 MR. DURST: Well, the argument, as I
2 understand it, is that they are not, that they are
3 advisory to the industry. That argument I can
4 address. All standards are for advisory to the
5 industry and that's where we get the term substandard
6 machinery. If a standard is the --
7 THE COURT: Let me stop you, Mr. Durst. Is
8 that the substance of your expert's testimony?
9 MR. DURST: Yes, your Honor.
10 THE COURT: All right. So he will be
11 discussing that during his testimony, what the
12 standards are in the industry?
14 THE COURT: Where he found that particular
15 standard?
17 THE COURT: All right. So with regard to
18 his testimony, that will be before the jury, correct?
20 THE COURT: So why do we need that item
21 that he's going to testify to in evidence?
22 MR. DURST: Because it will, it will show
23 the jury exactly where he got that information.
24 THE COURT: And will he not be testifying
25 about that?
599
bd Proceedings
1 MR. DURST: Yes, but this shows them the
2 actual book itself.
3 THE COURT: Are you suggesting that the
4 expert's testimony is not sufficient for them to
5 understand where he got that information when he's
6 testifying that he got it from the Handbook Of
7 Industrial Safety Standards in the 1929 edition?
8 MR. DURST: They need to be able to see the
9 standards, your Honor. They need to be able to see
10 it.
11 THE COURT: You're saying it's not enough
12 for them to hear the expert testifying that he
13 obtained his information and his expertise through
14 various sources, one of which is the Handbook Of
15 Industrial Safety Standards 1929 edition vis-a-vis a
16 dough mixer?
17 MR. DURST: It's not near as credible, your
18 Honor, for them not to see the standard that he's
19 talking about and see what it says. It's not as
20 credible.
21 THE COURT: All right. That application is
22 granted.
24 MR. DURST: I can't use any blowups, your
25 Honor?
600
bd Proceedings
1 THE COURT: No, you may not, Mr. Durst.
2 MR. DURST: Can they look at the book?
3 THE COURT: That is not in evidence, sir.
4 Your witness's testimony will be sufficient. All
5 right.
6 MR. DURST: Well, I hope the jury agrees
7 with you.
8 THE COURT: Well, that is not for me to
9 say, Mr. Durst. You have an obligation with regard to
10 the presentation of your case as do defense counsel.
11 The jury is here to weigh the credibility of all of
12 the witnesses. That is their job, and let me just say
13 to you, Mr. Durst, as I'm sure the defense counsels
14 have also informed their respective clients, once you
15 decide to go to trial, you submit your evidence, the
16 jury weighs the evidence, the credibility of all of
17 the witnesses, and then that's up to the jury to
18 decide.
19 MR. DURST: But you don't think them seeing
20 it is more important than --
21 THE COURT: Mr. Durst, Mr. Durst, please.
22 I would assume that you're an experienced trial
23 attorney. Perhaps I'm wrong.
24 MR. DURST: You could be.
25 THE COURT: Well, you know, perhaps I'm

601
bd Proceedings
1 wrong.
2 MR. DURST: I'm sure not as experienced as
3 you.
4 THE COURT: But let me just say that does
5 not go before the jury. All right?
8 THE COURT: Let's begin.
9 (The following transpired in open court in
10 the presence of all counsel:)
12 rise.
13 (Panel of sworn jurors enters the
14 courtroom.)
16 gentlemen.
18 THE COURT: Come on, peppy, let's go.
19 Peppy. Good morning, ladies and gentlemen.
21 THE COURT: Excellent. Have a seat,
22 everyone. I trust everyone is doing well this
23 morning. Yes? I do see some shiny faces, smiling
24 faces. All right, ladies and gentlemen. Without any
25 further delay, Mr. Durst, you have a witness to call?

602
bd Proceedings
1 MR. DURST: Yes, your Honor. I call at
2 this time Dr. Igor Paul.
3 I G O R P A U L, called on behalf of the Plaintiff,
4 having been duly sworn, took the witness stand and
6 THE CLERK: State your name for the
7 record.
8 THE WITNESS: Igor Paul, P-A-U-L is my
9 last name.
10 THE CLERK: And your business address,
11 please, sir?
12 THE WITNESS: I live at 844 Lake Shore
13 Drive in New London, New Hampshire.
14 THE CLERK: Thank you.
15 THE COURT: All right. Good morning,
16 Mr. Paul.
17 THE WITNESS: Good morning.
18 THE COURT: Mr. Paul, I'm going to ask you
19 please to speak nice and loudly, clearly and slowly.
20 All right, sir?
21 THE WITNESS: Yes, your Honor.
22 THE COURT: All right. You may inquire.
23 MR. DURST: Thank you, your Honor.
25 BY MR. DURST:
603
bd Dr. Paul - Plaintiff - Direct
1 Q. Good morning, Dr. Paul.
2 A. Good morning.
3 Q. Would you explain for the jury your educational
4 background?
5 A. Yes. I went to Public School 20 in Flushing.
6 I then went to Brooklyn Technical High School in Brooklyn,
7 New York, in 195 -- I graduated there in 1956, and I went
8 to the Massachusetts Institute of Technology in Cambridge,
9 Massachusetts, MIT, and there I received my bachelor's
10 degree in mechanical engineering in the area of industrial
11 machine and product design. I continued on and received a
12 master's degree in 1961, also from MIT, also in mechanical
13 engineering. I continued on and received a doctorate,
14 doctor of science degree at, from MIT from the mechanical
15 engineering department in the areas of machine design and
16 control systems, and then I joined full-time faculty at
17 MIT and continued teaching there undergraduate and
18 graduate mechanical engineering students for 39 years, and
19 I retired from MIT last June, June 2003.
20 Q. Would you describe your experience, sir, as far
21 as what courses you taught at MIT during your career
22 there?
23 A. Yes. I was in the design and controls division
24 of the mechanical engineering department, so my major
25 duties were to teach product and machine design, the whole

604
1 process of, of designing and building machinery.
2 THE COURT: I'm sorry. That was at MIT,
3 sir?
4 THE WITNESS: Pardon me?
5 THE COURT: MIT?
6 THE WITNESS: Yes.
7 A. So every term I would teach usually an
8 undergraduate course in industrial machine design or
9 product design and a graduate course in machine design and
10 product design. In addition to that, at MIT all faculty
11 have about half time of their duties are academic
12 teaching, the other half is doing research, and also MIT
13 gives their faculty one day a week for outside consulting.
14 So in the research area I did research on
15 various products and on various -- on methodology of
16 teaching engineering to students. And in terms of
17 products, I did research in high speed ground
18 transportation, solid waste disposal machinery, automated
19 industrial machinery, and an area called biomechanics,
20 which is the application of engineering principles to the
21 musculoskeletal system in terms of injury and trauma to
22 the human body.
23 And in, in outside consulting I consulted for
24 various manufacturers and clients, designing products and
25 evaluating products in unrelated to products liability

605
1 like we're here today, and also I did quite a bit of
2 consulting on a variety of products in a products
3 liability setting. When somebody got injured on a
4 machine, I would evaluate the design of the machine and at
5 times come to court and testify about the safety. So
6 industrial safety was part of my teaching duties
7 throughout the 39 years and also part of my consulting
8 business.
9 In terms of specific machinery that's involved
10 here, I, I actually consulted for one of the major
11 manufacturers of baking, bakery machinery and mixers, in
12 particular all kinds of mixers, and have consulted on
13 maybe eight to twelve cases involving injuries to workers
14 which occurred on horizontal batch mixers of the type
15 we're talking about here.
16 Q. Now, sir, there came a time that I approached
17 you with regard to evaluating the machine in question in
18 this case, correct?
19 A. Yes.
20 Q. And you charged me for your time in doing that,
21 correct?
22 A. Yes. I have a normal consulting rate.
23 Q. And what is the fee that you're charging?
24 A. Three hundred dollars per hour.
25 Q. Tell us what experience you have with

606
1 industrial machine safety. Is this called a dough mixer,
2 an industrial machine?
3 A. Yes.
4 Q. And tell us what experience you have with
5 regard to industrial machine safety. You taught courses
6 in it, or what is it exactly?
7 A. Well, industrial machine design involves, you
8 know, many engineering kinds of disciplines, but both at
9 MIT and all the better engineering schools the human
10 factors, so-called human factors is about one third of the
11 teaching and in fact of the process of designing a new
12 product.
13 Human factors is essentially looking at the
14 capabilities and limitations of human beings, because all
15 machines and all products are designed for humans to use.
16 So engineers have to be aware of human capabilities, human
17 frailties, how fast you can do things, how long an
18 attention span you have if you're doing repeated tasks,
19 your attitude, a worker's attitude towards safety and his
20 job, so human factors involves designing a machine for the
21 human so that the human limitations aren't punished by
22 bodily harm by lopping off your arm or, or causing other
23 injury.
24 Q. Well, when did the industrial machine safety
25 start becoming an issue in --

607
1 A. Well, around the turn of the century, 19th
2 century, not 20th, I mean 20th century, which was in the
3 early 1900s, not now, the 21st century, during the
4 industrial revolution people started thinking about
5 designing machinery with the safety of the operator in
6 mind. And in fact, New York State was one of the states
7 that was instrumental in instituting safety for machine
8 operators. But so various committees were formed and they
9 were, you know, they worried about designing machinery
10 that wouldn't hurt people, that wouldn't hurt workers, and
11 industrial safety, per say, started back in 1914 or so in
12 terms of -- well -- and continues to this day.
13 You know, you have occupational safety and
14 health administration, you have various standards,
15 committees in engineering. In the bakery machinery
16 industry, there was an organization which was called
17 American Society of Bakery Equipment Engineers. Those
18 were engineers who were designing bakery equipment, and
19 back as far as 1920s they started instituting standards
20 for safe machine design, and then in 1943 they had a big
21 convention here in New York actually, and they promulgated
22 some standards for bakery machinery which included dough
23 mixers.
24 The machinery that's involved here is called a
25 horizontal batch dough mixer. Put stuff inside and the

608
1 machine mixes it all up, makes the dough and actually
2 kneads the dough, so instead of doing it by hand, the
3 machine kneads it for you, and then you get it out of the
4 machine and can do other things with it, use it for
5 various things.
6 So the standards which were initially
7 promulgated by the American society of standard --
8 American society of -- at that time it was the American
9 Society of Standards, was here in New York, and back in
10 1947 they promulgated safety standards for the design of
11 bakery equipment, which included specifically horizontal
12 mixers of this type.
13 Q. Is it -- is it important for students,
14 mechanical engineers to study safety, or is that a
15 separate subject entirely?
16 A. No, because, you know, again, machines are all
17 designed for human consumption, human use. So safety is
18 part and partial of -- part and parcel of machine design.
19 When you design a new product or a new machine, your
20 foremost thought has to be you don't want to injure the
21 user of the machine. If they -- you know, so, yes,
22 industrial safety is part of our curriculum. It is taught
23 and, you know, you hope that engineers will heed safety
24 concerns, and in fact, we also at MIT teach a course
25 called professional ethics, which deal with the

609
1 responsibility of an engineer when they design a product
2 both to the, to the public and to the users of the machine
3 as well as to society in general.
4 Q. What is the responsibility -- tell the jury
5 something about that, the substance of that course. What
6 is the responsibility of a machine maker?
7 A. Well, there's actually, there's actually a code
8 of conduct for engineers, and one of the, the second rule
9 of that code is that you, you consider safety as a
10 paramount decision maker in machine design. In other
11 words, if you can. If you can't make the machine safe,
12 then you shouldn't make, be making it.
13 Q. Well, there are some things that you can't make
14 safe, like a knife, right?
15 A. Right.
16 Q. What about those?
17 MS. COTTER: Objection.
18 MR. SCOTTO: Objection.
20 Q. Well, when you say if you can't make it safe,
21 you shouldn't make it, some things are -- I mean, can you
22 explain more about that?
24 THE COURT: Did you understand the
25 question, Mr. Paul?

610
1 THE WITNESS: Yes.
2 THE COURT: Okay. If you understood the
3 question.
4 A. Well, you design a machine to do a certain
5 function. For example, the dough mixers are made to mix
6 and knead dough in large batches, industrial batches, so
7 the function of that machine is to do that. Now, you
8 design this machine with, with safety in mind that an
9 operator will have to do certain things and you have to
10 foresee various ways that a machine or product might be
11 used and you have to design the machine so that
12 foreseeable uses will not cause injury to the user. So
13 the engineer's responsibility is to consider what the
14 worker, worker's limitations are or might be and how the
15 machine might be used and essentially protect the worker
16 from injury by the design of the machine. So that's
17 called safety design and industrial safety.
18 Q. And when is that taken into consideration in
19 the design process?
20 A. It's really taken into consideration right from
21 the get go when you start designing the machine. Now, to
22 actually enforce that, you have the various standards
23 committees and organizations, such as OSHA, that require
24 that minimum safety be designed into machinery, and that's
25 what I was saying, that the American Society of Bakery

611
1 Equipment Engineers essentially established standards of
2 minimum safety for bakery equipment, dating back to 1929,
3 and these minimum standards were promulgated to the
4 industry.
5 Q. Explain to us what a standard is. You use the
6 word standard. What does that mean?
7 A. Well, a standard is essentially something that
8 you judge something against in terms of machine design.
9 For example, for horizontal mixing machines, batch mixing
10 machines, a standard was established that the workers
11 should not be able to reach into rotating kneading blades
12 because the blades are designed to do, you know, damage to
13 dough. The machinery should not allow a worker to be able
14 to reach the mixing blades while they're rotating and any
15 conditions of use of the machine.
16 So since -- and so the standard, the minimum
17 standard was that you had to provide a lid, a safety lid,
18 and when a tilting type batch mixer like this, for a
19 tilting type batch mixer, when it was in the upright
20 position when it's mixing things, you should not be able
21 to get your hand into the mixer even if you tried. Those
22 are called safety interlocks. So if you try to raise the
23 lid, the machine stops like some drying machines, you
24 know, when you open the door it stops. So the washing
25 machine, if it's in the spin cycle, you open the door, the
612
1 machine stops. Those are safety interlocks.
2 Well, for, for dough mixers the standard was
3 established back in 1929 that you had to provide safety
4 interlocks so you couldn't reach in there while the blades
5 were turning. Now, functionally the reason you have it
6 tilting is after you kneaded the dough and you want to get
7 it out, you tilt the, the mixer and the blades need to
8 push the dough out, okay, and again, during that process
9 the worker should not be able to get their hand in there
10 while the -- so the standards essentially established that
11 once you tilt the container, then either the blades have
12 to stop or the lid can only open so far so the dough can
13 come out but you can't get your hands in. So those were
14 the standards dating back to '29.
15 Q. Now, you say -- did you research standards
16 specifically to dough mixing machines for us in the course
17 of this litigation?
18 A. Yes, I did.
19 Q. And what standards did you find?
20 A. Well, I --
21 Q. Did you bring them with you?
22 A. Yes. Back in --
24 THE COURT: Let me just hear the question
25 as phrased. Overruled.
613
1 Q. What standards did you find?
2 A. Well, there was something called a Handbook of
3 Industrial Safety Standards.
4 THE COURT: Well, actually let me, let me
5 sustain that objection. Let's just formulate another
6 question before that.
7 Q. Would you describe for the jury what standards
8 there were for dough mixers that you found?
9 THE WITNESS: Answer that?
10 A. Well, I found a number of standards that
11 related specifically to horizontal dough mixers of this
12 type and I also found various standards for guarding and
13 safety of machinery in general that applies to all
14 machinery, and in particular, guarding of what is called
15 the point of operation of a machine.
16 The point of operation is what actually does
17 the work on the material, like in an, in a stamping press
18 that's the area where the metal gets stamped. In a mixer
19 it's where the dough gets kneaded, gets mixed. In terms
20 of specific bakery equipment standards and specific to
21 horizontal batch mixers, I found that back in 1929 the
22 insurance industry, together with the bakery equipment
23 manufacturers, established standards which are called,
24 which were put together in a Handbook of Industrial Safety
25 Standards, and the earliest edition is the 1929 edition,

614
1 and it was published in 1929 by the National Bureau of
2 Casualty Surety Underwriters in New York, and one part of
3 that specifically deals with horizontal batch mixers of
4 the type we're talking here today.
5 Q. Specifically refers to dough mixers,
6 horizontal -- and what is a horizontal versus a --
7 A. It's -- it has a whole section on bakery
8 machinery. It has standards for other machinery in here
9 as well, but under the section for bakery machinery, it
10 specifically has a heading which deals with dough mixers.
11 The big heading is Machines In The Food Industry, and then
12 under section --
15 Doctor, just testify with regard to what
16 your standing is vis-a-vis the standards in the
17 industry vis-a-vis any published standards that there
18 might be without quoting exactly from something that's
19 not in evidence. All right?
20 A. Okay. So there, there was that kind of
21 standard.
22 Q. Does that book contain the standards that
23 you're referring to?
24 A. Yes, it does.
25 MR. DURST: Your Honor, I offer that,

615
1 provisions of that book that deal specifically with
2 dough makers in evidence as Plaintiff's Exhibit --
3 whichever the next one is.
5 THE COURT: Sustained, vis-a-vis our robing
6 room discussion.
7 Doctor, you may testify with regard to your
8 expertise and your knowledge of the standards in the
9 industry. All right?
10 THE WITNESS: Well --
11 THE COURT: Just testify with regard to
12 what your knowledge is and expertise vis-a-vis the
13 various standards in the industry as they relate to
14 dough mixing machinery.
15 THE WITNESS: Okay, but, but that is my
16 expertise. I don't --
17 THE COURT: You may testify with regard to
18 what that expertise is, the various standards that you
19 have reviewed in your years as an expert in this
20 industry vis-a-vis design of machinery. All right?
22 Q. So --
23 A. So I should mention it, but not --
24 THE COURT: The book is not going into
25 evidence. You may mention the book, but the book is

616
1 not going into evidence. All right? You may mention
2 what you have relied upon as an expert with regard to
3 standards in the industry.
4 Q. Okay. Would you tell us what your research
5 found that 1929 standard said as the standard for guarding
6 of dough mixers? And you may, if you need to, we have a
7 video that's in evidence and we have some photographs in
8 evidence, if you could use those on this specific machine
9 and tell us how that standard from 1929 relates to this
10 particular machine. Can you do that?
11 A. Sure.
12 MR. DURST: Your Honor, is it possible for
13 me to go ahead and set up the video?
14 THE COURT: Side bar, please.
15 (A discussion was held off the record
16 between the Court and counsel.)
17 THE COURT: Ladies and gentlemen, while we
18 set up, we'll give you a quick two minutes and you
19 will be right back and hopefully the technical
20 equipment will be in place at that time. All right.
21 Everyone, quick two minutes.
23 yourselves or with anyone else. Do not allow anyone
24 else to discuss it with you in your presence. If
25 anyone attempts to do so, please bring it to my

617
1 immediate attention. Please don't speak to any of the
2 parties or any attorneys or witnesses.
3 (Panel of sworn jurors exits the
4 courtroom.)
5 (A recess was taken.)
7 rise.
9 courtroom.)
11 gentlemen. Now that the equipment is set up, you may
12 have a seat.
13 All right, Doctor, why don't you step down
14 into the well of the courtroom stand somewhere along
15 the screen, and let's turn off some of the lights.
16 Not all of the lights.
17 (Tape played.)
18 Q. Doctor, you've seen this videotape, have you?
19 A. Yes, I have.
20 Q. With regard to the name plate, can you tell us
21 what a name plate is on a machine, why that's put there?
22 A. Well, usually the manufacturer puts a name
23 plate on the machine. This one is a metal name plate
24 that's actually riveted on or screwed on with the name of
25 the manufacturer and sometimes they have the model number

618
1 and things like that, just like on your car. The
2 manufacturer puts a name tag.
3 Q. Now, have you, have you reviewed the testimony
4 of Margot Tonnaer where she testified here in court?
5 A. Yes, I have.
6 Q. Now, based on the information you have, can you
7 tell us what the history of this machine was?
11 Q. All right. Doctor, if you could tell us with
12 regard to this machine how the standard of 1929 applies to
13 this machine and whether it meets that standard. By the
14 way, do you have an opinion as to whether it meets that
15 standard?
16 A. Yes.
17 Q. And what is that opinion?
18 A. It does not, did not at the time of the
19 accident.
20 Q. And would you explain to the jury what the
21 basis of that opinion is that it did not meet that 1929
22 standard?
23 A. Well, the basis is essentially the design and
24 the function of the machine and the testimony as to what
25 the condition of the machine was at the time of the

619
1 accident. I don't know. Has the jury seen -- know what
2 the machine --
3 THE COURT: Doctor, please.
6 THE COURT: I'm going to ask you, please,
7 sir, just respond to questions.
8 Q. Why don't you explain to us, explain to the
9 jury how this machine functions, how it was intended to
10 function to your understanding?
11 A. Okay.
12 Q. And by the way, you do, you've examined other
13 dough mixing machines as well?
14 A. Yes, other manufacturers as well as I've looked
15 at Tonnaer machines.
16 MR. SCOTTO: Your Honor, may we have a
17 side bar?
18 THE COURT: Quickly.
21 Q. Sir, let me ask you, would you describe for the
22 jury what the basis of your opinion is with regard to the
23 machine complying with these 1929 standards first? Why
24 don't we go through that first?
25 A. Okay. The basises(sic) for my opinion are

620
1 essentially my reviewing photographs of the actual machine
2 taken after the accident, my reviewing this video which
3 was taken a few months after the accident, my having
4 inspected other Tonnaer mixers of this type in other
5 locations not in the context of this lawsuit, my having
6 inspected horizontal mixers of this type of six other
7 manufacturers, and the testimony of in court here of
8 Margot Tonnaer.
11 A. And my review of the various testimony of
12 Mr. Greenberg, Mr. Scoppa, Mr. Saachi. I have it in my
13 notes, but I'm trying to recite from memory.
14 Mr. Rogair(ph), the OSHA citations to the company after
15 this accident, my knowledge, obviously, of the standards,
16 and my having been involved in other cases involving this
17 type of this kind of machinery, although not Tonnaer, not
18 this specific machine.
19 I think those are the bases of my knowledge of
20 the history of safety and standards of bakery machinery in
21 general and dough mixers in particular.
22 Q. Did you review Mr. Rodriguez' testimony?
23 A. Yes, I did.
24 Q. Now, I want you to focus on when this machine
25 was sold and tell us, first, when it was sold did it
621
1 comply with -- did it meet the standards, the 1929
2 standards?
4 MS. COTTER: Objection. He hasn't said if
5 he knows when it was sold.
7 A. I'm sorry. Did you ask if I had an opinion or
8 did you ask for my opinion?
9 Q. I'm asking for your opinion.
10 A. I, I do have an opinion and it did not --
11 when -- when Tonnaer manufacturer sold it, it did not have
12 the safety devices that were required in the United States
13 by standards because it did not have the safety interlocks
14 and it did not prevent the worker from reaching the
15 blades.
16 Q. Now, explain if you can, then --
17 A. I can.
18 Q. -- using this machine, the basically
19 underpinnings of your opinion.
20 A. I don't understand that question.
21 Q. All right. Explain why it is it didn't meet
22 those 1929 standards.
23 A. Okay. This is a still picture which is part of
24 the video of the horizontal mixer we're talking about. It
25 has two motors, one here and one here. One of the motors
622
1 drives the ribbon mixing blades, which are in here.
2 There's one here, which you'll see later better in the
3 video, and one here. The kind that is in this particular
4 one is what Margot Tonnaer referred to as a --
7 THE COURT: Yes, please, just based upon --
9 THE COURT: -- your review of everything
10 that you just recited. Just go on, sir.
11 A. Okay. Those, those blades are called Z blades,
12 Z because they have the shape of a Z, and there are two of
13 them in there, and this is the hopper, this is the top of
14 the hopper. That's where you put stuff in. The way this
15 is shown now, it is tilted forward, the way it's intended
16 to push out the dough after it's mixing again. Later you
17 will see how it is in the upright position. This is all
18 just machinery that performs the rotation of the kneading
19 blades and the tilting of this whole hopper. This is a
20 tilting kind of hopper because it's a big machine. It's
21 about six feet from the floor to the top of the hopper
22 when it's up, and this one shows a lid, a hinged lid which
23 is hinged over here so you can lift it up here from the
24 front.
25 Okay, stop. These are the mixing blades.

623
1 There are two shafts and under shaft and they do
2 essentially the same thing that when you knead dough, you
3 shear the dough against each other until it's all mixed
4 in.
5 Okay, keep going. Okay, stop again. Here you
6 can see the blades even better. They are Z shaped, each
7 one, and this is, you know, essentially where the hinged
8 top meets the hopper and this machine has no interlocks
9 either here or back at the hinges and no signs that there
10 were ever interlocks there which would prevent this from
11 being raised while the blades are going. That's one of
12 the standards back in '29 that when these blades are
13 rotating you should not be able to gain access, which
14 means that if you try to lift this, the blades would stop.
15 THE COURT: I'm sorry. Try to lift what,
16 sir, for the record?
18 THE COURT: Try to lift what, for the
19 record, just so -- try to lift this --
20 THE WITNESS: The lid.
21 Q. The lid or the cover?
22 A. The -- this grate, which is a safety cover --
23 I'm sorry. I referred to it as a lid, but it's a safety
24 gate, actually, that you open up.
25 Okay, keep going. Okay, here you see the

624
1 blades actually rotating behind the safety grate. If --
2 when the safety grate is in place like that, you can't get
3 to the blades.
4 Okay, can you stop it? Okay. The way these
5 blades are rotating is if you look from the side they are
6 rotating like that, they bring the dough in, in the middle
7 and they carry it up on the side of the trough, the bowl.
8 Okay, up. And then knead it and back into the middle like
9 that. That will just help you understand how it gets
10 pushed out.
11 Okay, stop it here. Now, in the normal
12 intended operation of this machine after the kneading is
13 completed, you bring the bowl down into this position.
14 THE COURT: Which I'm going to ask you,
15 just for the record, state what you mean by "this
16 position." All right, sir?
17 THE WITNESS: Okay. We start with this
18 safety gate in a horizontal position. When you load
19 the stuff and when it mixes, after you finish mixing,
20 you rotate it, rotate it forward so that the, the top
21 edge of the, of the hopper is now horizontal. Okay?
22 And the safety gate is vertical like shown in this
23 picture, okay, so that when this blade rotates and
24 pushes the dough against the wall of the hopper, it
25 pushes it out. So that's how you normally would

625
1 unload the machine. It would push it out.
2 Now, with this safety gate, it couldn't do
3 that because if it's closed, then no dough would come
4 out. With the safety interlock with this kind of
5 machine, this gate would be able to, to open a little
6 bit to let the dough out but you still couldn't reach
7 in. That's what the safety standards required. This
8 machine doesn't have it and didn't have it when it was
9 manufactured.
10 Okay. Okay, stop for a second. Now we're
11 in the process of putting it back up into its vertical
12 position from the unloading position. So keep going.
13 Okay, stop for a minute. Back up a little. Okay,
14 stop here. Forward. Okay, stop. Okay. So now it's
15 being brought back up to where when it mixes the
16 materials. Now, on the left-hand side here you'll see
17 something coming up now, which is called a segment
18 deer. It's -- it's an -- a round part of an arc with
19 deer teeth on it, and you'll see those better now, but
20 those are the deer teeth that do the tilting.
21 THE COURT: I'm sorry. Deer teeth, did you
22 say?
23 THE WITNESS: Teeth, yes.
24 THE COURT: Teeth.
25 THE WITNESS: Yes, teeth, that accomplish

626
1 the tilting. The left motor under there has some deer
2 teeth, and there, they are, there used to be
3 originally a lever on here which operates the tilting
4 mechanism. At the time of the accident --
7 THE WITNESS: At the time of the accident
8 that is the lever which wasn't working and these
9 pictures were taken after the accident when the lever
10 was, wasn't put back. Other ways were used to tilt
11 the machine. So at the time that wasn't working, so
12 they couldn't do this tilting procedure, okay, and
13 because they wanted to continue production --
15 THE COURT: Yes, not with regard to what
16 they wanted to do.
17 THE WITNESS: Okay, I'm sorry. They
18 couldn't do the tilting. Okay. Keep going. Okay,
19 stop. So this is the bowl in the upright position.
20 This top lip is about 75 inches from the ground, so
21 it's about four inches above my head if I were to
22 stand in front of that machine. Up there and to, to
23 mix stuff, you would have to put it in from the top,
24 okay, and to do that manually, the operator had to
25 stand on something and put things in, and this is the

627
1 position in which it was being used at the time of the
2 accident because the tilting was --
5 THE WITNESS: Because the tilting wasn't
6 working. Okay. So they mixed the stuff in there and
7 then they would remove the dough, leaving it like
8 this, and the, the operator had to essentially reach
9 in to get the dough out. This is just a measurement
10 that shows the lip is about 75 inches. You see it's
11 above the head of the person who's measuring it.
12 Okay, stop. Maybe a little more. Okay,
13 hold. Okay. This is the plaintiff standing in front
14 of the hopper. This is the hopper in the vertical
15 position, and he's standing on a step stool, three
16 steps, three steps essentially. I think you'll see it
17 later. He's standing on the top step and this is
18 essentially where he would be standing to get the
19 dough out of there, okay, because it couldn't tilt
20 forward. And you'll notice that the edge here comes
21 about to his chest here, so he essentially has to
22 reach over that edge to get at the material, and now,
23 when the blades are rotating, this blade that's
24 closest to you actually pushes the dough up along this
25 surface. So the procedure they were doing is they

628
1 would push the dough up and he would grab it, cut it
2 off, put it over, have it pushed up, grab, grab, cut
3 it off and put it in the container.
4 Okay, keep going. Okay, hold it. So
5 during this process his hand got caught in that front,
6 between the wall here and the front blade. Okay, hold
7 it. Now, in terms of non-compliance with the
8 standards, okay, this lid that we have, the safety
9 cover that we were talking about which is pivoted back
10 here is not safety, was not safety interlocked when
11 the machine left the manufacturer. By the New York
12 and the US standards you shouldn't be able to lift
13 that gate and get your hand in there no matter what.
14 Okay. If you start to lift the gate, the machine
15 should stop. So -- and also, when it was tilted
16 forward, as soon as you start tilting it forward, the
17 blades should stop, unless you have the interlock for
18 the safety gate.
19 The idea which is stated specifically in
20 the standards is that the worker cannot get his or her
21 hand in the rotating blade. That's what safety
22 devices are for. That's why it didn't meet it.
23 Now, at the time of the accident, in
24 addition to --

629
2 THE WITNESS: This safety gate had been
3 removed by the employer Ferrara company so that they
4 could in fact take --
7 THE WITNESS: So they could in fact get
8 the dough out, you know, without the safety gate in
9 place, because otherwise, they couldn't get the dough
10 out. So at the time of the accident they had removed
11 the safety gate which didn't have a safety interlock
12 in the first place and had him essentially reaching
13 into the bowl to get the dough out. Okay.
14 Q. If the safety interlock had been designed on to
15 the machine, would the employer have been able to use, to
16 remove the safety gate and have his employee doing what he
17 was doing?
18 A. No. That's the end of it.
19 Q. There's just positioning of him?
20 A. Okay.
22 THE COURT: Are you done with the video,
23 Mr. Durst?
25 THE COURT: Let's remove the screen and

630
1 let's turn the lights back on, please. Let's
2 disconnect the video equipment so nobody trips over
3 it, please.
4 Q. Dr. Paul, in addition to the 1929 standard, did
5 you find any other standards that related to the dough
6 mixing machine?
7 A. Yes. In 1947, I think I, I mentioned before
8 the American Society of Bakery Machinery Engineers met in
9 New York --
10 MR. SCOTTO: Objection, your Honor.
12 MR. SCOTTO: Your Honor, may we approach?
13 THE COURT: No. Let's go on.
14 A. And they, under their sponsorship the American
15 society -- the National Standards Institute, which is
16 located here in New York, promulgated standards which were
17 called Z50.1 standards, and the first one came out in 1947
18 which, again, dealt specifically with bakery machinery.
19 The name of the standard is safety -- can I just refer
20 to -- standard of safety for the, for bakery machinery,
21 and again, this had standards for various machinery, but
22 in particular it dealt with this kind of horizontal mixer
23 and it required safety interlocks like the ones that I
24 have described to you and this machine did not meet.
25 Also in 1949 there was an international

631
1 conference in Geneva, which was sponsored by the
2 International Standards Organization, which is
3 international, goes beyond the United States, and they had
4 a conference and they agreed on a, what they call A Model
5 Code Of Safety Regulations For Industrial Establishments
6 For The Guidance Of Governments And Industry, and this was
7 published in 1949 by the International Labor Office
8 published in Geneva, and again, it had standards for
9 various machinery. It specifically deals with this
10 machine, this kind of machinery, almost the -- well, the
11 same configuration and the same function, and again, it
12 requires automatic shut-offs and safety devices that will
13 positively keep the worker's hands out of the danger area.
14 MR. DURST: Your Honor, I would offer -- I
15 think we should probably mark those as for
16 identification, both the 1929 industrial handbook and
17 the model code subject to ruling. I guess we should
18 probably mark it as at least being proffered.
22 THE COURT: Let's proceed.
23 MR. DURST: All right.
24 Q. So since 1949 what standards have there been?
25 A. Well, this 1947 standard by the National

632
1 Standards Institute actually was revised on seven
2 occasions in 19 -- first one came out in 1947. There was
3 one in '71 --
4 MR. SCOTTO: Your Honor, objection.
7 MR. SCOTTO: Your Honor, may we approach?
8 THE COURT: No, you may not. Go ahead.
9 A. One in '47, one in '71, one in '73, '77, '83,
10 '88, '94 and 2000. They were revised in those years and
11 every one, including, of course, today reaffirmed these
12 safety devices for this kind of mixer to protect the
13 worker.
14 Q. Now, with regard to human factors, would you
15 apply the understanding of human factors to what the
16 plaintiff was doing at the time of the accident and
17 explain to the jury how human factors would be taken into
18 consideration in what was happening?
22 Q. Does the area of human factors engineering play
23 a role with regard to safety in machine design?
24 A. Yes.
25 Q. Would you explain how that, human factors would

633
1 relate to the procedure that the plaintiff was doing at
2 the time of the accident?
3 THE COURT: Let's just take it one step at
4 a time. All right?
5 Q. Does the --
6 THE COURT: Let's just take it one step at
7 a time. Human factors and safety design.
8 THE WITNESS: Okay. Human factors in
9 safety design. Essentially we have in engineering a
10 very fixed procedure of -- in designing machinery,
11 which is called risk analysis, and what you do is you
12 can, you say, well, this is the machine I'm designing,
13 how can it be used by humans and what kinds of things
14 can humans do with this machine.
15 With a dough mixer, essentially, you know,
16 from way back in '29 engineers and designers realized
17 that humans might reach into the churning machine for
18 one reason or another. That's why you put in safety
19 devices. And so human factors dictated the safety
20 devices which were promulgated by standards.
21 Now, in terms of what the plaintiff was --
22 I'm sorry. Is that going beyond the question?
23 THE COURT: All right, next question.
24 Q. How does that apply to what the plaintiff was
25 doing at the time of the accident?

634
1 A. The plaintiff at the time of the accident was
2 trying to remove dough from the mixing bowl. Okay? He
3 had no safety device to prevent him from doing that, and
4 in fact, the way it had to be done was to lean down, you
5 know, from where he was, reach over the edge and grab the
6 dough and pull it up, cut it off and put it away. There
7 were no safety devices, so he wasn't prevented from doing
8 that. He was doing that because that's the only way he
9 can do it.
12 A. So he was doing as best he can an, absolutely
13 horrible procedure which, A, should have been forbidden by
14 the design of the machine, it shouldn't have been allowed,
15 and, B, certainly shouldn't have been allowed by --
17 A. -- the owner of the machine because --
19 A. Because remove the safety device and he was
20 expecting somebody to reach down into the bowl to get the
21 dough, and really the only practical way of getting it out
22 is to have the blade help you get the dough up where you
23 can reach it and then take it out. So he was doing a task
24 that he was being made to do that, you know, was just
25 waiting for an accident to happen. It just totally

635
bd Dr. Paul - Plaintiff - Cross (Ms. Cotter)
1 unbelievable to me.
2 MR. DURST: No further questions.
3 THE COURT: Ladies and gentlemen, do you
4 guys need a break, a quick break? No? All right.
5 Let's proceed. Cross-examination.
6 MS. COTTER: Thank you.
7 CROSS-EXAMINATION
8 BY MS. COTTER:
9 Q. Dr. Paul, good morning.
10 A. Good morning.
11 Q. Now, you testified earlier that you're being
12 paid approximately, or not approximately, but $300 per
13 hour for being here?
14 A. That is my normal consulting fee for anything.
15 Q. And yesterday when you were here, we didn't
16 reach your testimony. Were you paid that same rate?
17 A. No. I certainly don't charge for waiting
18 around, no.
19 Q. And how about when you prepared with Mr. Durst,
20 did you charge the same rate?
21 A. Yes. When I do active work, I do get paid,
22 yes.
23 Q. Now, you have no personal knowledge of the
24 accident; is that right?
25 A. No.
636
1 Q. And you have testified before?
2 A. Yes.
3 Q. Is it fair to say you have testified many times
4 before?
5 A. In the 39 years, many times, yes.
6 Q. And you've been testifying for almost 40 years?
7 A. Yeah, almost 40.
8 Q. In the past two years how many times would you
9 say you've testified in court?
10 A. I think -- in the past two years? I think six
11 times.
12 Q. And of those six times how many were for the
13 plaintiff?
14 A. I think five of the six were -- oh, no, I'm
15 sorry, four of the six were for plaintiff.
16 Q. Now, you've never met Mr. Rodriguez, have you?
17 A. Yes, I met him yesterday.
18 Q. Okay. Other than yesterday, did you meet him
19 at any other point?
20 A. No. Well, today again.
21 Q. You were -- you were at an inspection of this
22 machine involved in the accident just five months after
23 the accident; isn't that right?
24 A. I was? I was not.
25 Q. Were you ever at an inspection of this machine?

637
1 A. No.
2 Q. So you have never physically examined the
3 actual machine?
5 Q. So all you've seen is the videotape that we
6 played and you referred to, right?
7 A. Yes.
8 Q. Okay. And you have looked at some photographs?
9 A. Yes.
10 Q. And you've reviewed some materials like
11 deposition transcripts and things of that sort; is that
12 right?
13 A. Yes.
14 Q. Did you ever see a serial number on this
15 machine?
16 A. No. I've never inspected it personally, and my
17 understanding was there was no serial number to be --
18 Q. Do you realize that defendant's expert did
19 inspect this machine personally?
20 A. Yes.
21 Q. Now, do you know how long Ferrara Foods, the
22 third party defendant, had this machine prior to the time
23 of the accident?
24 A. I don't know exactly. There's some testimony
25 that they had it for maybe 10 or 12 years.

638
1 Q. Before the accident?
2 A. Before the accident.
3 Q. And are you aware that a witness came into this
4 court and testified that it was probably manufactured in
5 the late 1950s, around '55 to '58?
6 A. Yes. I think that's what Ms. Tonnaer testified
7 to, yes.
8 Q. And so would it be fair to say that it was, it
9 was manufactured approximately 20 years before Ferrara
10 Foods received it?
11 A. Well, if, if the Ferrara Foods recollection of
12 10 to 12 years before they started using it is correct,
13 then yes.
14 Q. And you have no personal knowledge of where
15 Ferrara Foods -- personal knowledge of where Ferrara Foods
16 got the machine almost 30 years ago?
17 A. I have no -- no, only based on testimony.
18 Q. And you have no personal knowledge of when
19 exactly this machine was manufactured?
20 A. I have no personal knowledge, no.
21 Q. Now, you never examined the machine at any
22 time; is that right?
23 A. Not this machine, that's correct.
24 Q. Never examined it when it was manufactured in
25 the 1950s?
639
1 A. No. I wasn't even in the United States.
2 Q. You never even examined it when Ferrara Foods
3 got the machine in 1979?
4 A. No.
5 Q. And you don't know how many times Ferrara Foods
6 repaired the machine in the 30 years they had it prior to
7 the accident?
8 A. I don't know how many times, no, except again
9 in terms of testimony of Ferrara.
10 Q. I'm asking you from personal knowledge.
11 A. Not personal, no.
12 Q. Now, you made some conclusions regarding OSHA
13 violations; is that right?
14 A. I didn't make any conclusions.
15 Q. Okay. Well, you've seen OSHA violations
16 against the employer, the third party defendant in this
17 case, haven't you?
18 A. Yes.
19 Q. And wouldn't you agree that Ferrara Foods could
20 have made additional alterations to the machine?
23 Q. Now, with respect to OSHA violations, would you
24 agree that OSHA applies to employers?
25 THE COURT: If you know.

640
1 A. In terms of my understanding and my opinion,
2 no, I think it applies to machinery as well that's used in
3 the workplace.
4 Q. Well, when violations are issued under OSHA,
5 are they issued to employers?
6 A. Yes.
7 Q. Are they issued to anyone else, to your
8 knowledge?
9 A. Not to my knowledge, no.
10 Q. So employers receive OSHA violations; is that
11 right?
12 A. Yes.
13 Q. And in this instance Ferrara Foods received
14 several OSHA violations, correct?
17 Q. Now, when you testified earlier that
18 Machinefabriek Tonnaer was the manufacturer of this
19 machine, you're basing that upon the name plate you saw in
20 the photograph, right?
21 A. That and Ms. Tonnaer's testimony, yes.
22 Q. Okay. And other than that name plate, you've
23 never personally seen any other identifying information on
24 the machine; is that right?
25 A. I've seen the same name plate on other Tonnaer

641
1 machines, but I haven't seen anything else on this machine
2 because I never examined this machine. I don't know if
3 there was anything else.
4 Q. And you have no personal knowledge who sold the
5 machine after it left the possession of Machinefabriek
6 Tonnaer, personal knowledge?
7 A. Well, well, I have, I have no personal
8 knowledge of anything. I mean everything, every knowledge
9 I have is from, you know, documents in this case, so when
10 you preface, preface things by saying "personal
11 knowledge," I don't have any personal knowledge except
12 what's based on what I've examined.
13 Q. Now, did you notice, when you reviewed the
14 video of the inspection of this machine, you looked at
15 photographs, did you notice that there were wires all over
16 the place around the machine?
17 A. I don't think there were wires all over the
18 place. There were wires between the motors and the
19 control box and the switches.
20 Q. Okay. And did it appear to you that they had
21 been disconnected?
22 A. No.
23 Q. Did it appear to you that this machine was in
24 gross disrepair?

642
1 THE COURT: All right. Could you make a
2 determination based on pictures or videos, sir?
3 THE WITNESS: Well, I can only base it on
4 what I saw in the pictures and video. I didn't think
5 it was in gross disrepair.
6 Q. Did you form an opinion as to the age of the
7 machine?
8 A. I didn't from those pictures, no.
9 Q. Now, would you agree, sir, based upon your
10 review of information in this case and including the video
11 and the photographs that the safety grate or guard over
12 the hopper was removed by the employer, Ferrara?
13 A. Yes.
14 Q. And would you agree that a lever which was
15 there at the time of the accident was not working?
16 A. Yes.
17 Q. And you would -- would you agree that Ferrara
18 then removed that lever?
19 A. That I don't know.
20 Q. Now, are you aware that Ferrara also
21 disconnected a switch button connected to this machine?
22 A. My understanding is that they disconnected the
23 tilt switch so that workers wouldn't tilt, try to tilt it
24 because the tilt didn't work.
25 MS. COTTER: Could I see Defendant's A

643
1 through C in evidence, photographs?
2 THE WITNESS: I'm sorry. Is there a
3 pending question?
4 THE COURT: Just one second, sir.
5 (Pause in proceedings.)
6 MS. COTTER: Your Honor, may I ask the
7 doctor to step into the well?
8 THE COURT: Yes.
9 Q. Doctor, can you step up? And when you say that
10 you understand that Ferrara disconnected a switch button
11 which stopped the tilting mechanism from working, could
12 you explain that by using these photographs?
13 A. Well, my understanding from the testimony is
14 that it's not there, so I can't show it to you because
15 the, these two buttons were, my understanding is were
16 added after the accident, but before the accident there
17 was a button which Ms. Tonnaer referred to in her
18 testimony. This machine also had a button to tilt.
19 Q. That was also removed by Ferrara?
20 A. Right.
21 Q. Where in -- if you have to say it's behind
22 something, where with respect to these photographs would
23 that button be that Ferrara disconnected?
24 A. The answer is I don't know.
25 Q. Okay. Now, is that button that they removed,

644
1 is that the same as a safety switch on this type of
2 machine?
3 A. No.
4 Q. Okay. Safety switch is something different?
5 A. The machine didn't have a safety switch.
6 Q. Okay. So by using these photographs, you can't
7 exactly point to the button which was actually removed by
8 Ferrara before the accident?
9 A. No.
10 Q. Can you say what it's behind, if anything, in
11 those photographs or if it's at the side of something?
12 A. No, because I don't know its original location.
13 My recollection from Ms. Tonnaer's testimony --
15 A. -- is that she --
16 THE COURT: Overruled. Go ahead.
17 A. She pointed to the area where that switch was,
18 but I wasn't here, so I don't know where she pointed.
19 Q. Okay. You can have a seat, Doctor.
20 Now, Doctor, is it also your understanding that
21 Ferrara continued to operate the machine while the tilting
22 feature, tilting arm of the machine was broken?
24 THE COURT: Again, based upon his review of
25 the records.
645
1 MS. COTTER: Yes, based upon your review of
2 the records in the case.
3 THE COURT: All right. Based upon your
4 review of the records.
5 A. At the time of the accident they continued to
6 use this even though the tilting mechanism was not
7 working.
8 Q. And could you explain how they were able to
9 continue using that?
11 THE COURT: Let me hear the question.
12 Q. Could you explain how one could continue using
13 the tilting feature of this type of machine despite the
14 fact that it was broken? What would they have to actually
15 do?
16 THE COURT: All right. Overruled.
17 A. I don't understand the question.
18 Q. Well, you said that Ferrara continued to use
19 the machine even though the tilting arm was broken; is
20 that right?
21 A. Yes.
22 Q. And you testified that your understanding is
23 that a button which controlled the operation of the
24 tilting feature had been disconnected; is that right?
25 A. Yes.
646
1 Q. What did disconnection of that tilting feature
2 on the machine allow them to do?
3 A. Didn't allow them to do -- I don't understand
4 your question. The two are unrelated.
5 Q. Let me ask you this. Actually strike that.
6 I'll move on.
7 Now, Doctor, I'm going to refer to the
8 standards which you talked about this morning, more
9 specifically, the 1929 standard.
10 A. Yes.
11 Q. Okay. Could you take that out to refresh your
12 recollection if need be.
13 A. Sure. Yes.
14 Q. I'm going to draw your attention to section
15 370-159, which is the one you came into court to say was
16 not complied with.
18 THE COURT: Let me hear the question.
19 Q. Now, Doctor, this section has different
20 categories, it gives specifications as to non-tilting
21 machines and then also as to tilting machines; is that
22 right?
23 A. Yes.
24 Q. And isn't it true that with respect to the
25 tilting type of dough mixers, it gives an option, a one or

647
1 the other?
2 A. Actually it even allows three different things.
3 Q. Okay. Could you tell us what it allows? Well,
4 before we get to that, so is it your testimony now that it
5 not only requires an interlock on top of the grate but it
6 also gives the maker of the machine the option of doing
7 two other things, is that right, if they don't do the
8 interlock on the grate?
9 A. No, it's not instead of. In addition to.
10 Q. Okay. Explain.
11 A. Well, I think the best way is if I just read
12 it.
14 THE WITNESS: It's -- I mean it's very
15 clear.
16 THE COURT: Sir, just review it to
17 yourself. Just one second.
19 THE COURT: All right. Just review it to
20 yourself and then respond to the question without
21 quoting. All right, sir?
23 THE WITNESS: Okay. I'm sorry. I lost
24 track of your original question. Could you just --
25 Q. Let me ask you this, Doctor. You've reviewed

648
1 the section under the 1929 standard with respect to
2 tilting type of dough mixers?
3 A. Yes.
4 Q. And isn't it true that one of two types of
5 protection, you know, were suggested to be on this type of
6 dough mixer, either an interlock device on top of the
7 grate or an automatic power cutoff on the bowl when tilted
8 to the unloading position?
9 A. Yes, but the second one --
10 Q. So -- well, Doctor, let me --
11 A. Okay.
12 Q. Let me clarify that. So isn't it an either or,
13 either have the interlock on the grate or have an
14 automatic power cutoff when the bowl is tilted in the
15 unloaded position?
16 A. Well --
17 Q. Isn't it an either or?
18 A. No, it is not, because the other one depends on
19 what you do with the first option. In other words --
20 Q. Where does it say that?
21 A. Well, it says --
22 THE COURT: Please don't quote.
23 A. And I won't quote, that if you don't use option
24 one you have to provide two other things so that you're
25 able to do the function of the machine.

649
1 Q. So if you --
2 A. You can do it --
3 THE COURT: Let's just --
5 THE COURT: Let him just finish the answer.
6 Did you finish your answer, sir?
7 THE WITNESS: Yes.
8 Q. So, Doctor, let me understand it, understand
9 you correctly.
10 If you don't do option one, which is what
11 you've talked about here today, an interlock on top of the
12 guard, you can do something else?
13 A. Yes.
14 Q. And what is that something else?
15 A. Well, you can provide an automatic shut-off
16 so -- which I think I did mention as part of the standard.
17 Q. Yes. Explain that to us, and if you need to,
18 you can get up and use these photographs.
19 A. You can provide an interlock which when you try
20 to tilt the bowl forward to unloading position, the blades
21 will automatically stop so you can't, you know, you can
22 make it so that you can tilt it forward but the blades
23 won't, won't stop. Okay? I mean it will stop the safety
24 interlock, would ensure that when you bring it into the
25 tilted position the blades will stop.

650
1 Q. In other words, if this machine did not have
2 the interlock on top of the grate, which you've talked
3 about this morning, the maker of the machine could also
4 have another type of interlock in place, which once the
5 bowl was started in a rotation from the horizontal mixing
6 position to the vertical unloading position the blades
7 would automatically stop?
8 A. Okay, I think you mis-spoke in terms of
9 vertical and horizontal, but -- so I don't think your
10 question makes sense.
11 Q. Okay. If an interlock wasn't on top of the
12 grate --
13 A. Yes.
14 Q. -- as you spoke about this morning, an employer
15 could also have an automatic shut-off, which meant when
16 the bowl was rotated from the horizontal mixing
17 position --
18 A. Yes.
19 Q. -- to the vertical unloading position --
20 A. Yes.
21 Q. -- the blades would automatically stop?
22 A. Yes.
23 MR. SCOTTO: Objection as to the employer.
24 I think she meant manufacturer.

651
1 Q. So if this was on the machine, the standard
2 would be followed, would it not?
3 A. Well, no, because of the next paragraph in the
4 standard.
5 Q. Okay. Well, explain it then.
6 A. Because if you did that without doing something
7 else, then you couldn't use the blades for unloading the
8 bowl. In other words, the reason for the tilting
9 mechanism is you tilt it over and you have the bowl, the
10 blade to push the dough out, you know, so nobody has to
11 reach in. The blade pushes it out.
12 Now, if you chose to put in an interlock that
13 stopped the blade right after the bowl started going into
14 its loading position, then you couldn't do that. Now, the
15 standard provides that if you still want to use the blades
16 for unloading, then you could accomplish that by a control
17 which requires the operator to have both of their hands
18 pushing the control continuously to jog the blades.
19 That's the jogging button I think Ms. Tonnaer was talking
20 about.
21 Q. And if this machine had those features, it
22 would be compliant with the standard?
23 A. Sure.
24 Q. Now, you didn't inspect the machine, you were
25 never there?
652
2 established. Let's move on to another question.
3 Q. Are you aware that safety switches which
4 controlled an automatic power cutoff of this option that
5 we just talked about were on this machine and removed by
6 Ferrara?
7 MR. DURST: Objection, your Honor.
8 THE COURT: Only if you know.
9 A. I don't know.
10 Q. Are you aware that defendant's expert's going
11 to come in and explain to you, and he was there --
14 Q. Now, the two standards that you have come into
15 court and talked about today are the International Labor
16 Office Model Code For The Guidance Of Government And
17 Industries; is that right? Is that one of them?
18 A. Yes. It's actually three I talked about.
19 Q. And the 1929 one is called what?
20 A. Handbook of Industrial Safety Standards.
21 Q. Now, these aren't laws or regulations, right?
22 A. No, they are recommended standards.
23 Q. Would you agree that they're kind of like
24 advisory suggestions, ways, you know, makers of machines
25 could do things differently or better?

653
1 A. From my own experience, I do not agree with
2 that.
3 Q. Well, but you agree that they're not
4 regulations, they're not laws? What do you view them as?
5 A. Well, I think, you know, from a machine
6 designer's point of view, they are regulations and minimum
7 standards if you don't follow you're producing an unsafe
8 machine, it's a bum machine if you don't follow the
9 standards recommended, but it's not a law as far as I
10 know.
11 Q. Now --
12 A. Although actually, you know, organizations like
13 OSHA include some of these standards as part of, you know,
14 they make the force of law, so for example, the ANSI
15 standards for dough mixers which require --
16 MR. SCOTTO: Objection as to ANSI.
18 A. Those are incorporated in OSHA, you know, then
19 OSHA makes it, you know, the strength of the law, but in
20 1929 they were not the strength of the law.
21 Q. And are you aware of the OSHA violations issued
22 to Ferrara in this case?
25 Q. Are you familiar with the American Standard

654
1 Safety Code for Bakery Equipment?
2 A. Yes.
3 Q. Have you talked about that this morning?
4 A. Well, it depends which one you're talking
5 about.
6 Q. 1947.
7 A. I think that's the one I mentioned.
8 Q. That was one of the ones you listed at the end?
9 A. Well, I thought I listed it in the middle, but
10 yes, I did list it.
11 Q. And of all these guides that you talked about
12 today, is there one that you view as more controlling than
13 the others or more authoritative?
14 A. Well, again, as a designer and as an, as a
15 teacher of industrial safety history, I probably view the
16 1929 one as the most telling in terms that even back in
17 1929, you know, New York State was concerned about
18 workers' safety, and they established -- in fact, I think
19 I mentioned before, New York was one of the first states
20 that started introducing industrial safety into the
21 workplace, so I kind of consider that the most significant
22 in terms of knowledge within, you know, within the
23 industry that these kinds of mixers have to have these
24 safeguards.
25 Q. And the 1929 one is the one that you've

655
1 admitted had the maker of the machine put on the automatic
2 shut-off that was eventually removed, it would have been
3 in compliance?
5 THE COURT: Do you understand the question,
6 sir?
7 THE WITNESS: I don't.
8 THE COURT: All right. Rephrase, please.
9 Q. The 1929 one is the one which you've talked
10 about has a second option that the employer can put on an
11 automatic shut-off?
12 MR. SCOTTO: Objection to employer.
13 THE COURT: With regards to -- yes,
14 sustained.
15 Q. The 1929 code is the one you've talked about
16 that the maker of a machine in the alternative to putting
17 on an interlock on the grate could also do something else,
18 an automatic shut-off; is that right?
19 A. I think they all allow it. All the ones I've
20 mentioned, you know, have the same thing. It, you know,
21 they allow some options, but all options are rigid in the
22 fact that the worker cannot get his or her hand into the
23 rotating blade regardless of whether the thing is
24 horizontal, vertical, or any other way.
25 Q. And if the --
656
1 A. They do allow to facilitate unloading by using
2 some other jogging controls but which still assure the
3 same thing.
4 Q. Now, would you agree that if an employer
5 removed certain safety features, there was no way of being
6 in compliance originally with the code?
8 A. I don't understand.
9 MR. SCOTTO: You have to wait for the
10 judge to rule.
12 THE COURT: I'm sorry. Did you understand
13 the question?
14 THE WITNESS: No, I did not.
15 THE COURT: All right. Rephrase the
16 question, please.
17 Q. Wouldn't you agree that if a maker was in
18 compliance with one of the standards and the safety
19 feature put on by the maker was removed by the employer,
20 the maker of the machine had no, you know, no control in
21 the first instance?
23 THE COURT: Can you answer that question?
24 THE WITNESS: I really can't. I don't --
25 what control? I'm sorry. I really can't.

657
1 Q. Well, to quote you earlier, Doctor, you agree
2 that if the employer removed certain safety features, an
3 accident was waiting to happen, correct?
4 A. Yes. I thought -- I thought an accident was
5 waiting to happen with the original machine.
6 Q. So you would agree that the employer's
7 modifications on this machine caused the accident?
10 A. I would not agree with that, no. They
11 certainly contributed to the happening of the accident.
14 gentlemen. We're going to take a quick two minutes.
15 All right. We'll be right back. Please don't discuss
16 the case amongst yourselves or with anyone else.
17 Don't let anyone discuss it with you in your presence.
18 If anyone attempts to do so, bring it to my immediate
19 attention. Don't talk to any of the parties or
20 attorneys or witnesses. And I'll be selling cars very
21 soon. All right, ladies and gentlemen.
23 courtroom.)

658
bd Dr. Paul - Plaintiff - Cross (Ms. Scotto)
1 rise.
3 courtroom.)
4 THE COURT: Ladies and gentlemen, have a
5 seat. Ms. Scotto, please.
6 MR. SCOTTO: Thank you.
7 CROSS-EXAMINATION
8 BY MS. SCOTTO:
9 Q. Good afternoon, Dr. Paul.
11 Q. My name is Francine Scotto and I represent
12 Ferrara Foods.
13 A. Okay.
14 Q. Can you tell me, when were you first retained
15 by Mr. Durst's firm?
16 A. Well, my initial contact was late 1997.
17 Q. And did you meet Mr. Durst before testifying
18 today?
19 A. Yes.
20 Q. Have you met anyone else from his firm?
21 A. Well, I met that gentleman over there.
22 Q. The attorney, Mr. Berson(ph), you met with him
23 also?
24 A. Well, he was in the car when they delivered me
25 to the hotel yesterday, yes.

659
1 Q. Let me ask you, Doctor, you said you live in
2 New Hampshire?
3 A. Yes, I do.
4 Q. You flew in to New York?
5 A. Yes.
6 Q. Who paid for your airline ticket?
7 A. Well, nobody yet, but I assume Mr. Durst better
8 pay for them.
9 Q. And how much were your tickets?
10 A. Frankly, as I sit here, I don't know. I think
11 they were $280 or $290.
12 Q. And you said you stayed in a hotel, is that
13 right, last night?
14 A. Yes.
15 Q. What hotel did you stay in?
16 A. The Hilton, 53rd Street.
17 Q. Nice hotel. How much did that cost?
18 A. I think $229 or something like that.
19 Q. Who's paying for that?
20 A. Mr. Durst better be.
21 Q. And transportation to and from the airport, was
22 that provided by Mr. Durst?
23 A. Yes. Well, to the airport, I don't know, but
24 he did pick me up.
25 Q. He picked you up himself?

660
1 A. Yeah. That's how I met with him.
2 Q. And what about your meals, who's paying for
3 your meals?
4 A. Well, I think those are part of my expenses
5 which will be paid by Mr. Durst or I guess by the
6 plaintiff through Mr. Durst.
7 Q. Do you charge for travel time?
8 A. Yes.
9 Q. What's your rate for travel time?
10 A. Two hundred per hour.
11 Q. And while you were waiting here yesterday, you
12 didn't charge anything, that was for free?
13 A. Yes.
14 Q. So how many hours did you spend traveling on
15 this case?
16 A. Coming here, two hours, so I think a trial
17 appearance will be -- I'll charge four hours of traveling.
18 Q. Up until today how many hours have you spent on
19 this case in total, whether it's studying the case or
20 whether it was testifying today or meeting with Mr. Durst?
21 A. Well, before I arrived at LaGuardia, I spent
22 nine hours on this case from 1997 to May 20.
23 Q. Of this year?
24 A. Yes.
25 Q. And that was nine hours at $300?

661
1 A. Yes.
2 Q. And you said it's about four hours today to
3 testify at $300 an hour?
4 A. Well, depends how many -- no, I said four hours
5 total travel I will charge.
6 Q. Oh, I'm sorry.
7 A. Two hours each way total traveling, although
8 it's really four hours each way travel.
9 Q. And, Doctor, you said you've been testifying
10 since 1964; is that right?
11 A. Yes, I've been consulting, yes, '64.
12 Q. Would it be fair to say that from 1964 until
13 today you testified over several hundred times?
14 A. On deposition and trial, yes.
15 Q. About 300 times?
16 A. I think on deposition and trial probably more
17 than that in 40 years.
18 Q. More than 300 times?
19 A. Probably.
20 Q. Do you keep a list of the cases in which you
21 are retained where you testify?
22 A. Well, I, I keep a rule 26 list which is a, you
23 know, a four hour, a four year list. I don't keep a list
24 of all the cases for the 40 years, no.
25 Q. Do you have that list with you?

662
1 A. No, I don't. You mean the latest list?
2 Q. The most current one.
3 A. I don't have one.
4 MS. SCOTTO: Your Honor, may I have this
5 document marked Third Party Plaintiff's A?
6 (A document was marked as Third-Party
7 Plaintiff's Exhibit A for identification.)
8 Q. Doctor, is that your list of cases?
9 A. It says deposition and trial testimony through
10 April 1995.
11 Q. Is that your list?
12 A. I don't know. I'm not sure.
13 Q. You're not sure?
14 A. It's certainly not my current list.
15 Q. I didn't say it was current. Is that your list
16 through April 1995?
17 A. Well, the answer is I don't know. That's what
18 it says on top, and, you know, I did make up a list, I do
19 have a running list, which -- but I can't remember back to
20 April 1995, if that, if that's my list.
21 Q. Is that the format you use?
22 A. Yes.
23 Q. Does it look like your list?
24 A. It does look like my list, yes.
25 Q. I'd ask you to take a look at it.

663
1 A. In what way?
2 Q. Just take a look at it, and can you tell me,
3 there's about 120 cases on that list; isn't that right?
4 A. I really have to count.
5 Q. Can you take a look through there? It shows
6 who you testified for, the plaintiff or the defendant; is
7 that right?
8 A. Yes.
9 Q. It indicates on there --
10 A. It says plaintiff or defendant, yes.
11 Q. I took the liberty of counting them, being 120.
12 Would you agree with me that 97 of them were for the
13 plaintiff?
14 A. I wouldn't disagree. Yeah, the vast majority
15 is for plaintiffs.
16 Q. That's about 24 percent of all those cases --
17 I'm sorry. It's 24 percent of those cases were for the
18 defendant; is that right?
19 A. Well, yes, if those numbers are right, yes.
20 Q. So of the products that you've inspected on
21 cases that you've testified through April of 1995, based
22 on what is on that list, you found 76 percent of them to
23 be defective?
24 A. No. It means that I testified for the
25 plaintiff in 75 percent of them, yes.

664
1 Q. So you testifying for the plaintiff, you're
2 testifying that the machine was defective; isn't that
3 right?
4 A. If it's a personal injury case, yes, if it's --
5 but there are a number of patent cases on here.
6 Q. And isn't it true that as of August of 1999, of
7 all the cases you testified, 85 percent of the time you
8 found the products to be defective?
9 A. Yes, predominantly I testified on cases for
10 plaintiffs, yes.
11 Q. And isn't it true you've testified that helmets
12 were defective? Is that true?
13 THE COURT: I'm sorry. What?
14 MS. SCOTTO: Helmets.
17 Q. You've testified on a number of cases as to
18 different types of items that were defective; isn't that
19 right?
20 A. Yes, literally hundreds of products, yes.
21 Q. Ladders?
22 A. I'm a product designer.
23 Q. Ladders one of them?
24 A. Yes. I both testified in cases where the
25 ladders did have a defect and in cases where the ladders

665
1 didn't have a defect.
2 Q. Golf clubs?
3 A. No, I never testified that the golf clubs were
4 defective. I was consulting for ping golf clubs and it
5 was a legal matter involving a PGA. It had nothing to do
6 with defects or non-defect.
7 Q. You testified about chaise lounges?
8 A. What kind of lounges?
9 Q. Chaise lounges?
10 A. I do recall one, yes.
11 Q. Hammocks?
12 A. I'm not sure. I testified -- I did a study for
13 the Consumer Product Safety Commission on hammocks, and I
14 found on those defects and they were recalled.
15 Q. Car wash?
16 A. Yes.
17 Q. Vending machines?
18 A. I do remember a tip over of a vending machine,
19 yes.
20 Q. A ski lift?
21 A. Yes.
22 Q. A dump truck?
23 A. Yes. In fact, that's a New York case. Yes.
24 Q. Amusement park rides?
25 A. Yes.
666
1 Q. Dr. Paul, is there any product you're not an
2 expert in?
3 A. Not in terms of product design, no.
4 Q. Did you ever --
5 A. That's my -- that's my profession.
6 Q. Did you ever actually design a dough mixing
7 machine?
8 A. No.
9 Q. Did you ever manufacturer a dough mixing
10 machine?
11 A. Well, actually I'm sorry. I did design parts
12 of a dough making machine, and in fact, the safety
13 controls for horizontal dough making machines for
14 Patterson, who's a major manufacturer, yes, I did.
15 Q. You said you designed parts; is that right?
16 A. Well, I designed the, the -- this is a modern,
17 now, a digital control system which included the safety
18 controls, yes.
19 Q. Did you ever repair a dough mixing machine?
20 A. Yes.
21 Q. As an engineer you've repaired machines?
22 A. Well, I did repair some dough making machines
23 as an engineer. It wasn't my profession, but I did it for
24 my client, yes.
25 Q. And what are the names of the dough mixing

667
1 manufacturers that you've worked for as an employee?
2 A. Well, if consulting is not an employee, then
3 none. I wasn't employed by them. I consulted for them
4 and they paid me for my consulting at my normal rate.
5 Q. Since you finished your formal education you've
6 been a college professor; is that right?
7 A. Yes.
8 Q. So up until today your only employer has been
9 MIT?
10 A. Yes.
11 Q. How many dough mixing manufacturers are there
12 in the US?
13 A. I don't know. I've seen machines of about six
14 of them.
15 Q. And how many dough mixing manufacturers are
16 there in Europe?
17 A. I don't know. I've seen machines of three of
18 them.
19 Q. And can you tell me how many companies in the
20 US sell reconditioned dough mixing machines?
21 A. I have no idea.
22 Q. And how many companies in the US sell new or
23 used dough mixing machines?
24 A. I don't know. I mean in my experience when new
25 machines are sold by a distributor, then there's only one

668
1 distributor for each manufacturer, whether it's a
2 manufacturer here in the states or from Europe.
3 Q. You've been involved in the sale of the
4 machines?
5 A. I've been involved in sale of industrial
6 machines, yes.
7 Q. The sale of dough mixing machines?
8 A. Not dough making machines.
9 Q. And you've never seen a company have more than
10 one distributor?
11 A. That's not what I said.
12 THE COURT: Company or manufacturer, which
13 is that?
14 MS. SCOTTO: I'm sorry.
15 THE COURT: Company or manufacturer?
16 MR. SCOTTO: Excuse me. Manufacturer.
17 THE WITNESS: I'm sorry. Now I lost the
18 question.
19 Q. You've never, you've never had an experience
20 where a manufacturer has more than one distributor?
21 A. Certainly not, but I didn't say that. Yes, a
22 manufacturer can have many distributors. European
23 manufacturers usually have one distributor in the United
24 States.
25 Q. Dr. Paul, now you're telling us you're an

669
1 expert in what, European manufacturers?
2 A. No, I'm just answering your question.
3 Q. Do you have any notes on this case?
4 A. Sure.
5 Q. Do you have them with you?
6 A. Sure.
7 Q. May I see them?
8 A. Sure.
9 Q. Is that your file?
10 A. It's my working file, yes.
11 Q. May I see your file?
12 A. Sure.
13 Q. The notes that are here, when did you prepare
14 them?
15 A. Well, it depends which ones.
16 Q. The handwritten notes.
17 A. On the front page there's an itemization of the
18 work that I have.
19 Q. I just want to know when you prepared them.
20 A. Well, it depends which notes because they go
21 back to 1997, and some were --
22 Q. Okay, that was my question.
23 A. Yes. They depend on which notes. Some are --
24 were prepared last night, and some were prepared back in
25 '98.
670
1 Q. When did you reach the conclusions that you
2 testified about today?
3 A. In terms of a horizontal mixer, as soon as I
4 saw the pictures of the machine and had a description of
5 what the plaintiff was doing.
6 THE COURT: And a description of?
7 THE WITNESS: What the plaintiff was doing
8 at the time.
9 Q. And when was that?
10 A. I'll have to look at the front of my file to
11 tell you that, but it's in, it's in there.
12 Q. Did you write a report?
13 A. I don't think so, no.
14 Q. You never wrote a report on this case?
15 A. I was never asked for a report. Did you want
16 an answer to that question?
17 Q. Sure.
18 A. In June of 2000.
19 Q. So you were first retained in '97 and you
20 reached your conclusion in June of 2000?
21 A. Well, I wasn't retained in '97. I was -- I was
22 first contacted and given some information and then I
23 reviewed some additional information. I reviewed the
24 standards, and in June of 2000 I gave Mr. Durst oral
25 preliminary professional opinions and that was after

671
1 reading Greenberg's, Saachi's, Scoppa's and the
2 plaintiff's depositions.
3 Q. Did you ever see any mechanical drawings of
4 this particular machine?
5 A. I have not.
6 Q. Did you ever see the operation manual?
7 A. I have not.
8 Q. Can you tell me which features on this machine
9 were standard and which features were options on the
10 machine when it was sold by the manufacturer?
11 A. No.
12 Q. You weren't here when the plaintiff testified,
13 is that right, at the trial?
14 A. Well, I was here, but I wasn't allowed in the
15 courtroom.
16 Q. Did someone tell you what the plaintiff
17 testified about?
18 A. Frankly I don't -- I don't think we discussed
19 his testimony, no.
20 Q. And you agree with me that before an engineer
21 gives an opinion you should have all the facts, right?
22 A. No, that's not necessarily how it works.
23 Usually you don't have all the facts.
24 Q. Okay. The opinion that you gave her today,
25 that's not the opinion of MIT; is that right?

672
1 A. None. I've never asked MIT, no, as far as --
2 it's my, my professional opinion as an engineer, product
3 designer.
4 Q. That model code that you spoke about today,
5 that model code is just that, it's a model; isn't that
6 right? No one's required to follow it?
7 A. No.
8 Q. In a perfect world everyone would follow the
9 models; is that right?
10 A. Well, I don't know what you consider perfect
11 world. I don't expect it to be followed by everyone, no.
12 I mean it wasn't followed here.
13 Q. Are you a member of the American Society Of
14 Bakery Equipment Engineers that you spoke about?
15 A. No.
16 Q. And you also spoke about American Society of
17 Standards. Did I get that name right? Is that their
18 name?
19 A. I think I said American Standards Institute and
20 later it became the American National Standards Institute,
21 ANSI.
22 Q. Are you a member?
23 A. I'm a member of ASME that sponsored them. I'm
24 not -- I don't know -- I don't think there is membership
25 in ANSI. They have various committees, but there's no

673
bd Dr. Paul - Plaintiff - Redirect
1 membership that you get.
2 Q. Based upon your understanding of the accident,
3 would you agree that the plaintiff stuck his hand into the
4 moving blades of the machine?
5 A. I don't think he stuck his hands into the
6 moving blades of the machine, no.
7 Q. That's not your understanding?
8 A. That's my knowledge, that he didn't.
9 MS. SCOTTO: I have no further questions.
10 THE COURT: Redirect?
13 BY MR. DURST:
14 Q. Would you explain that statement that you just
15 made, that he didn't stick his hands into the moving
16 blades?
17 A. Well, he, he had to remove the dough out of the
18 machine. The moving blades would push it up, he would
19 grab it and pull it and cut it off. In doing so, his hand
20 was pulled in by the dough. That dough is not stationary.
21 It's going all the time. So his hand was pulled into the
22 blade. He certainly, you know, didn't stick his hand into
23 a moving blade knowingly or otherwise.
24 Q. Now, sir, you testified about the --
25 MR. DURST: And your Honor, if I could

674
bd Dr. Paul - Plaintiff - Recross (Ms. Scotto)
1 grab this exhibit here and just hold it up for the
2 jury.
3 Q. You testified about the possibility of the
4 question of whether there might be something that would
5 stop the blade if the machine was in the down position,
6 the pouring out position?
7 A. Yes.
8 Q. And would something that prevents the blades
9 moving when pouring out to push the blades out, would that
10 have prevented this accident?
11 A. I don't understand your question.
12 Q. Okay. If the blades can't turn when the
13 position is in the tilted, when the machine's in the
14 tilted position, would that have had any effect on this
15 accident?
16 A. No, because the hopper was in the vertical
17 position.
18 MR. DURST: All right. No further
20 THE COURT: Anything limited to redirect?
21 MR. SCOTTO: Yes, your Honor.
23 BY MS. SCOTTO:
24 Q. What was your understanding of the level of the
25 dough at the time of the accident?

675
bd Dr. Paul - Plaintiff - Recross (Ms. Scotto)
1 A. I had no understanding of the level of the
2 dough.
3 Q. So you don't know if the level of the dough was
4 very high or if it was very low; is that right?
5 A. I don't.
7 THE COURT: Thank you very much. You may
8 step down.
9 THE WITNESS: Go home?
10 THE COURT: Perhaps, or you can see the
11 sites of New York. It's up to you. The Bronx Zoo and
12 Botanical Gardens are lovely this time of year.
13 THE WITNESS: I've seen them.
14 (Witness excused.)
16 gentlemen. It seems that this would be an appropriate
17 time for us to take our luncheon recess, and I'm going
18 to ask you to promptly return by 2:15, no later than
19 2:15. The Court has a meeting now, so I'm going to
20 ask you to be back at 2:15. All right, everyone?
21 And again, please, as you've already
22 noticed, I give you this admonition each and every
23 time we take a break. By now you should be able to
24 tell me what it is yourselves, but please do not
25 discuss the case amongst yourselves, with anyone else,

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bd Proceedings
1 do not allow anyone to discuss it with you in your
2 presence. If anyone attempts to do so, bring it to my
3 immediate attention. Please don't speak with any
4 parties, attorneys or witnesses, and we'll see you at
5 2:15 everyone. Have a good lunch.
7 courtroom.)
8 THE COURT: I'm going to ask you to gather
9 up all your belongings before the jury leaves.
11 (Luncheon recess.)
12 - A F T E R N O O N S E S S I O N -
13 (The following transpired in the robing
14 room in the presence of all counsel, outside the
15 presence of the jury:)
16 MS. COTTER: For this afternoon's witness,
17 Dr. Phillip Visser, he's defendant's liability expert,
18 I'm going to seek to put two photographs into evidence
19 that were taken at the August 1995 inspection. We
20 already have photographs in evidence of the
21 inspection, the videotapes of the inspection.
22 Ms. Scotto has no problem with these
23 photographs. Mr. Durst objects to them.
24 MR. DURST: They were never provided to us.
25 MR. SCOTTO: Well, Judge, I have copies of

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bd Proceedings
1 them.
2 MR. DURST: Either in response to the
3 preliminary conference order which would require back
4 in 1996 exchange of photographs nor in the expert
5 exchange. The first time I've ever heard of these is
6 now when the witness is on the stand.
7 MS. COTTER: That is not true. All photos
8 were provided. Do I have a copy of my disclosure?
9 No, but Ms. Scotto represented that she did receive a
10 copy of these.
11 MR. SCOTTO: I did receive them.
12 MR. DURST: I didn't.
13 THE COURT: Okay. Just forgive me, but I'm
14 not quite sure what this photograph represents. If
15 you can enlighten me as to what it represents. Am I
16 holding it in the right position or --
17 MS. COTTER: It's -- no, more horizontal.
18 It's essentially --
19 THE COURT: Like this?
20 MS. COTTER: Right. Where a switch was
21 removed, a pad where a switch was removed.
22 THE COURT: I'm looking at a photograph --
23 I'm not sure what it depicts -- dated -- the
24 photograph, I believe, is 8/11/95 or maybe not. I
25 have no idea, but what does that photograph actually

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bd Proceedings
1 depict?
2 MS. COTTER: Pads on the machine from the
3 day of the inspection which is imprinted on the
4 photographs, 8/11/95, and it depicts a pad that a
5 safety switch was removed from that this witness
6 confirms.
7 THE COURT: All right. Would you elaborate
8 where that pad is on the machine at issue?
9 MS. COTTER: It is not obvious in any of
10 the photographs that are already in evidence. It
11 would be kind of around the side of the machine and
12 the witness is going to have to explain that.
13 THE COURT: And explain --
14 MS. COTTER: He's going to explain that he
15 saw those pads at his inspection of the machine and
16 that those are pads from which the safety switches
17 were removed.
18 THE COURT: All right. So his testimony
19 will be that on the date of the inspection where the
20 video that the jurors had been looking at, is that the
21 same inspection?
22 MS. COTTER: As that, those photographs,
23 same date.
24 THE COURT: So on the same date that the
25 videos were generated on this particular date, the

679
bd Proceedings
1 date that Mr. Durst was present?
2 MS. COTTER: Yes.
3 THE COURT: All of the attorneys were
4 present, and the video was generated on that date,
5 your expert was present; is that what you're saying?
6 I'm not -- all right. This, I'm looking at this,
7 these two photographs and I have no idea what this
8 means by looking at the photographs. So for the
9 record, what exactly do these photographs refer to
10 vis-a-vis the inspection on the date of August 11,
11 1995?
12 MS. COTTER: These photographs were taken
13 at the inspection that the jury has seen a videotape
14 of the inspection. This witness has reviewed these
15 photographs and on a separate occasion he inspected
16 the machine and saw that exact same thing depicted in
17 the photograph, which he will describe and identify to
18 the jury.
19 THE COURT: All right. My question is --
20 and maybe because I can't tell from these particular
21 photographs what these photographs refer to, your
22 witness's testimony with regard to these photographs
23 in terms of laying a foundation will be what exactly?
24 Your witness was present on the date that the
25 photographs were taken?

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bd Proceedings
1 MS. COTTER: No.
2 THE COURT: I'm not quite sure what --
3 MS. COTTER: No. His testimony will be he
4 recognizes what's in the photographs, he received
5 these photographs from me, they were apparently taken
6 on August 11, 1995. They depict the same pads that
7 safety switches were removed from.
8 THE COURT: All right. Let me just stop
9 you right there. With regard to the same pads and
10 looking at this photograph -- I'm sorry. Obviously I
11 was not there. I do not know what the particular
12 machine, other than the photographs that have already
13 been received in evidence, other than the video that
14 we have seen in evidence, with regard to this
15 particular machine what does the viewing of this
16 particular machine reflect vis-a-vis the machine that
17 the jurors have thus far seen in evidence, i.e., in
18 the way of photographs or in the way of the videotape?
19 MS. COTTER: This depicts a different angle
20 than they've probably seen to date. It depicts a view
21 from the -- taken from the side of the machine.
22 THE COURT: And this would have been a view
23 that was available to all of the individuals who were
24 present at the viewing, at the inspection; is that
25 correct?
681
bd Proceedings
1 MS. COTTER: Of course.
2 THE COURT: And again --
3 MS. COTTER: And probably if you went
4 through the video slowly, you might get an angle
5 towards it. It's on the side of the machine.
6 THE COURT: And what does this photograph
7 depict, again, for my edification?
8 MS. COTTER: There used to be a safety
9 switch on the rectangular box.
10 THE COURT: So -- all right. Now, I do
11 note in this particular photograph that you've
12 proffered -- is this the actual photograph that you
13 will be utilizing?
14 MS. COTTER: It's a laser copy, yes.
15 THE COURT: Because there's something that
16 has been previously marked that is -- there's a black
17 ink mark circling item in that particular photograph.
18 How was that mark generated?
19 MS. COTTER: I believe the expert drew on
20 it.
21 THE COURT: Do you have one that hasn't
22 been previously marked?
23 MS. COTTER: I don't think I do. I can
24 check, but I don't think I do.
25 THE COURT: Would you check? But other

682
bd Proceedings
1 than that -- don't go anywhere. No, no, no, no. With
2 regard to these photographs, what is the objective
3 that your expert has with regard to these two
4 photographs of the side viewing, if I'm correct, of
5 the machine at issue on the date of the inspection?
6 MS. COTTER: That they depict an area of
7 the machine that when he looked at it, it was obvious
8 to him there were safety switches there that had been
9 removed.
10 THE COURT: All right. So there were
11 safety switches in place and his viewing of this
12 photograph indicates that the safety switches had been
13 removed; is that what you're saying?
14 MS. COTTER: Yes.
15 THE COURT: And that's what you're wishing
16 to introduce through these photographs of your expert?
17 MS. COTTER: Yes.
18 THE COURT: All right. Any objection?
19 Well --
20 MS. SCOTTO: I have no objection, your
21 Honor. They were exchanged. I saw them.
22 MR. DURST: I have a severe objection as I
23 just mentioned. I have total objection to them.
24 THE COURT: With regard to a safety switch
25 that had been in place and then removed? All right.

683
bd Proceedings
1 Why don't you show --
2 MR. DURST: Yes, I do, I have severe
3 objection to it, of course. I -- that was never --
4 THE COURT: Just off the record.
7 MS. COTTER: Judge, I do not have a copy
8 without the circle.
9 THE COURT: All right. So these were
10 photographs that were taken of the machine at issue on
11 the date of the --
12 MS. COTTER: Inspection.
13 THE COURT: -- inspection when all the
14 parties were present including Mr. Durst?
15 MS. COTTER: Right, the same inspection
16 depicted in the videotape that's in evidence and the
17 photographs that are in evidence.
18 MR. DURST: Well, I wasn't there, but
19 someone from our office was.
20 THE COURT: Was Mr. Berson there at the
21 time when the photographs were or when the video was
22 made?
23 MR. DURST: Right.
24 THE COURT: Would you speak with Mr. Berson
25 then, Mr. Durst?

684
bd Proceedings
1 MR. DURST: No, I know he was there.
2 THE COURT: So he was there when the
3 photographs were taken and the video was taken?
4 MR. DURST: Sure.
5 THE COURT: All right. So any objections
6 that you may have with regard to this not having been
7 turned over to you in that Mr. Berson of your
8 office -- and that's the Durst office?
9 MR. DURST: Yes.
10 THE COURT: Was present when both the video
11 was taken -- well, why don't we get Mr. Berson in --
12 MR. DURST: No, I know he was there, your
13 Honor.
14 THE COURT: So Mr. Berson was present at
15 the time that the video was taken, the inspection was
16 going on, and any other photographs of the subject
17 machine were taken, correct?
18 MR. DURST: Yes.
19 THE COURT: All right. That being the
20 case, your objection is overruled. They will be
21 allowed to be received in evidence by the defendant.
22 MS. COTTER: Thank you, Judge. And again,
23 I'm continuing with Exhibits D and E now because we're
24 going to go back to those earlier exhibits.
25 THE COURT: A, B, C? All right. So these

685
bd Proceedings
1 will be now -- as I look at these photographs, they
2 appear to be identical. Are you going to mark these D
3 and E?
4 MS. COTTER: D and E is what I was going to
5 do.
6 THE COURT: Is there any reason since they
7 appear to be identical for --
8 MS. COTTER: I don't think they're exactly
9 identical.
10 THE COURT: All right. All right. So then
11 these will be D and E. Okay.
12 MS. COTTER: Okay. And earlier when Margot
13 Tonnaer testified, we marked, but we still reserved,
14 you had decision reserved on A through D. We're just
15 going to at the end of the trial re-mark those, give
16 them different --
17 THE COURT: With regard to certain items in
18 evidence that I had initially allowed into evidence
19 for defendants, one of them that I believe I had
20 reserved decision, but we're going to revisit some of
21 those items. All right? So these will be D and E for
22 defendant, not for third-party defendant, correct?
23 MS. COTTER: Correct.
24 THE COURT: Okay.
25 MR. SCOTTO: Judge, off the record.

686
bd Proceedings
3 MR. SCOTTO: I had some problems with the
4 testimony from this morning and I just wanted to put
5 some things on the record. Do you want me to do it
6 now, Judge?
7 THE COURT: No, no, no. With regard to the
8 matters that we had originally taken up in the Court's
9 chambers off the record, which we did not reduce to
10 the record before -- what's today?
11 MS. COTTER: Today's Tuesday, the 26th, the
12 25th, I'm sorry, Tuesday the 25th of May.
13 THE COURT: All right. Before today,
14 notwithstanding the fact that we had had a full off
15 the record colloquy and objections and consent with
16 regard to the proffered videotape which we had
17 utilized the EBT of Mr. Rogel, R-O-G-E-L, to decide
18 off the record what items would be redacted from the
19 actual videotape which we anticipate will be brought
20 in on Wednesday morning; is that correct, Ms. Scotto?
21 MR. SCOTTO: That's correct.
22 THE COURT: So the Court made rulings with
23 regard to first consent exclusions from the EBT which,
24 of course, would mean that the videotape itself would
25 go black with regard to certain rulings vis-a-vis the

687
bd Proceedings
1 EBT. Is that correct, Ms. Cotter?
2 MS. COTTER: I think it, it will actually
3 be more efficient than black, I think it literally,
4 the pages -- the screens merge.
5 THE COURT: Correct, so that the
6 videographer would make the video conform to the
7 rulings that the Court had vis-a-vis consent rulings
8 to exclude from the jurors' consideration certain
9 items that are in the EBT which are exactly what the
10 videotape would reflect.
11 MS. COTTER: Yes.
12 THE COURT: Consent rulings and objections
13 with regard to objections on the EBT, which is exactly
14 what the videotape would demonstrate. Is that
15 correct?
16 MS. COTTER: Yes.
17 THE COURT: Those items we did not actually
18 place on the record because we haven't had time yet to
19 place those items on the record, but I have had
20 rulings off the record after we had an in-camera
21 conference vis-a-vis the actual EBT.
22 So Ms. Scotto, with respect to that process
23 on Friday afternoon, you have certain objections; is
24 that it?
25 MR. SCOTTO: No, your Honor. I have

688
bd Proceedings
1 objections from this morning, this morning's
2 testimony, and I want to know if I can put them on the
3 record tomorrow when we do the Rogel objections on the
4 record.
5 THE COURT: And your objections are with
6 regard to today's proceeding vis-a-vis tomorrow's --
7 MR. SCOTTO: No, it's not related. I just
8 know we're going on the record tomorrow to do those
9 rulings. Can I do it tomorrow?
10 THE COURT: You're saying with regard to
11 today's proceedings?
12 MR. SCOTTO: Yes. Yes.
13 THE COURT: Let's just say with regard
14 to -- we would like -- if I can get to them this
15 afternoon, we will.
17 THE COURT: All I'm saying is with regard
18 to the time frame and because of the experts,
19 etcetera, I'm trying to as expeditiously as possible
20 get the experts out of the way. I know that you each
21 and every one of you has paid experts, so if we can
22 get the experts on and off, we'll do that, and at an
23 appropriate time I'll take your respective objections.
25 THE COURT: So long as no one is paying any

689
bd Proceedings
1 extra money. All right?
2 MR. SCOTTO: Thank you, Judge.
5 (Two copies of photographs were marked as
6 Defendant's Exhibit D and E for identification.)
10 rise.
12 courtroom.)
13 THE COURT: Good afternoon, ladies and
14 gentlemen. Have a seat. Thank you for your patience.
15 Counsel and the Court were engaged in legal issues,
16 and now we're ready to proceed.
17 Now, ladies and gentlemen, remember when I
18 told you that sometimes we need to take a witness out
19 of turn? All right, ladies and gentlemen, we are
20 taking a witness out of turn. As I explained to you,
21 we sometimes do that in order to accommodate a
22 particular witness, so notwithstanding the fact that
23 this is still Mr. Durst's case in chief, we are
24 accommodating a witness for the defendant. All right.
25 So we're taking a defendant's witness at this time.

690
bd Proceedings
1 All right?
2 Ms. Cotter.
3 MS. COTTER: Thank you, Judge. We call
4 Phillip Visser.
5 THE COURT: The last name is what?
6 MS. COTTER: Visser, V-I-S-S-E-R.
8 P H I L I P V I S S E R, called on behalf of the
9 Defendant, having been duly sworn, took the witness
10 stand and testified as follows:
11 THE CLERK: Please be seated, sir. State
12 your name for the record.
13 THE WITNESS: My name is Phillip R.
14 Visser, V-I-S-S-E-R.
15 THE CLERK: And your address, please.
16 THE WITNESS: My address is 51 Greco Way,
17 Hot Springs Village, Arkansas 71909.
19 THE COURT: You may inquire, Ms. Cotter.
21 THE COURT: All right. Good morning. Just
22 before you do, Mr. Visser, I'm going to ask you, sir,
23 to please speak up loudly, clearly and slowly.
24 THE WITNESS: All right, I'll try to do
25 that.
691
bd P. Visser - Defendant - Direct
2 Ms. Cotter.
4 BY MS. COTTER:
5 Q. Good afternoon, Mr. Visser.
7 Q. What is your present occupation?
8 A. I'm semi-retired, an engineer that's
9 semi-retired.
10 Q. And when you say semi-retired, can you explain
11 to us what else you do?
12 A. Well, I still work as a consulting engineer on
13 cases that are left over or that I take, but I don't take
14 too many of them.
15 THE COURT: I'm sorry, sir. You don't
16 take as --
17 THE WITNESS: Many as I used to when I was
18 fully employed.
19 Q. And how long have you been an engineer?
20 A. Since 1950.
21 Q. And could you tell us generally in terms of
22 your experience as an engineer what you've been doing
23 work-wise since 1950?
24 A. Well, I graduated from the University of
25 Michigan in 1950. I went to Argentina where I used to

692
1 live and worked as an engineer in a ship repair operation,
2 after that in a printing plant, and then I came to the
3 United States, back to the United States, went back to the
4 University of Michigan and taught engineering for about
5 two years. After that I joined General Electric Company
6 as a specialist and in Schenectady, New York and then I
7 went to Lynn, Massachusetts to work in jet engine --
8 THE COURT: I'm sorry, sir. Where in
9 Massachusetts?
10 THE WITNESS: In Lynn, L-Y-N-N,
11 Massachusetts, where I worked first as an engineer and
12 afterwards in quality control, and I ended up managing
13 the manufacturing operation, and in between there I
14 also was a manager of the fuel cell operation which
15 made the fuel cell for the Gemini space shot.
16 THE COURT: I'm sorry. That was fuel
17 engineer?
18 THE WITNESS: Fuel cell. A fuel cell
19 takes water and hydrogen and makes electricity and
20 makes water.
21 THE COURT: And that was for -- I'm sorry.
22 I didn't get that.
23 THE WITNESS: That was for the Gemini
24 space shot.
25 THE COURT: Okay, thank you.

693
1 Q. Could you tell us a little bit about what you
2 did at General Electric?
3 A. General Electric I managed the manufacturing
4 operation. We had four plants and I was responsible for
5 the output of cars, the safety in the plant, the general
6 things that one does when one runs a plant.
7 Q. And what did you do with respect to jet
8 engines?
9 A. We made the jet engines for mostly the Air
10 Force.
11 Q. And for whom were you working in 1996 through
12 1998?
13 THE COURT: I'm sorry. What was that
14 date, counsel?
15 MS. COTTER: 1996 through 1998.
16 A. Let me see now. Come up with the right dates
17 here. After General Electric I went to the Continental
18 Can Company.
19 Q. What did you do for them?
20 A. I was a general manager of the equipment
21 manufacturing operation which makes the equipment to close
22 cans, makes cans and transport cans in the plants.
23 Q. Did there come a time that you began working at
24 a company called Engineering Systems?
25 A. Well, after I left Continental Can, I first

694
1 worked for Packer Engineering, which is a consulting
2 company where I was a vice-president and worked in cases,
3 in consulting cases anywhere from industrial consulting to
4 cases involving lawsuits or insurance claims. After I
5 left Packer Engineering, I became an associate, not an
6 employee, but an associate of Engineering Systems, and
7 that's also a consulting company where I worked again as a
8 consultant for mechanical engineering subjects, also for
9 industry or for the insurance companies or in cases of
10 disputes in lawsuits.
11 Q. And as a consultant for Engineering Systems,
12 could you tell us what you did from day to day? What
13 exactly did that involve?
14 A. Well, it depends on the job that we took in.
15 Some cases I might have straightforward consulting with a
16 manufacturing operation about safety or design of the
17 equipment or manufacturing practices or something of that
18 type. Otherwise I would take a case which was a -- let's
19 say a lawsuit is involved. I would do an inspection of
20 the equipment involved, get a lot of material for the --
21 from the lawyer involved re-study, research and then
22 testify in depositions or testify in court.
23 Q. Is it fair to say that you have extensive
24 experience with machines?

695
2 A. I think I do, yes, ma'am.
3 Q. And are you familiar with a dough mixer such as
4 the one involved in the accident that we're here to talk
5 about today?
6 A. I'm familiar with that dough mixer. It's part
7 of a bunch of equipment that handles -- that's used in the
8 food equipment business and I'm very familiar with it.
9 Q. Now, have you -- have you taught anywhere?
10 A. I have taught engineering at the University of
11 Michigan.
12 Q. And how long have you been a licensed engineer?
13 A. Pardon me?
14 Q. Since 1950 you said you've been a licensed
15 engineer?
16 A. Yes, a mechanical engineer.
17 THE COURT: I'm sorry, sir. That was a --
18 THE WITNESS: Mechanical engineer.
19 Q. Now, you've testified before, right?
20 A. Yes, I have done so.
21 Q. When was the last time you testified?
22 A. As I recall, it was 2001.
23 Q. And you've testified for both sides, the
24 plaintiff's and the defendant's side?
25 A. Yes, I have.
696
1 Q. And obviously you're being compensated for
2 being here today?
3 A. Yes, ma'am.
4 Q. Did there come a time that you were asked to
5 look at a dough mixing machine that was -- that the
6 plaintiff was working on on March 14, 1995 when his
8 A. Yes, ma'am.
9 Q. Where was that machine when you examined it?
10 A. It was at -- the exact address -- it was in
11 Brooklyn. You want the exact address, I have to look it
12 up.
13 Q. Do you remember what the name of the place was?
14 A. I think it's Ferrara, something like that.
15 Q. Ferrara Foods?
16 A. Ferrara Foods, yes.
17 Q. Now, do you recall --
18 A. It was at 25 Chapel Street in Brooklyn.
19 Q. Thank you.
20 Do you recall what the situation was under
21 which you examined the machine? In other words, was it a
22 formal inspection of the machine? Who was there?
23 A. I was requested by the law firm of Quirk &
24 Bakalor to go and inspect that particular machine. I was
25 accompanied, accompanied by a representative of Quirk and

697
1 Bakalor and went with him to the bakery and inspected the
2 machine. There was nobody else there but one of the
3 employees who showed us where the machine was.
4 Q. Now, before going to do that inspection of the
5 machine, what did you review, if anything?
6 A. Before the inspection? Not much. It's after
7 the inspection I knew what kind of piece of equipment it
8 was. That's when I started reviewing material.
9 Q. And what did you review at that time?
10 A. Well, as I said in my report, at that time I
11 reviewed a videotape by the Drust(ph) law firm, I, I
12 reviewed the photographs that I took at the inspection, I
13 reviewed the response of defendant's interrogatories.
14 Sorry for the mispronunciation. I reviewed a written
15 statement by Mr. Miguel Rogel, who was a plant supervisor.
16 THE COURT: I'm sorry. Did you say
17 written?
18 THE WITNESS: It was a written statement
19 of Mr. Miguel Rogel, R-O-G-E-L, and I reviewed the
20 written statement of Mr. Edward Scoppa, the third.
21 Q. Now, did you come to learn at the inspection
22 when that machine was manufactured?
23 A. When I reviewed all the material, I came to
24 understand that, from the material, that the machine was
25 purchased secondhand in 1997.

698
1 Q. Okay. Was it 1997 or -- could you just review
2 your records again?
3 A. The machine was purchased by Ferrara Food in
4 1997.
5 Q. Was it 1997 or 1979?
6 A. Excuse me, '79. I --
7 Q. Okay. And you learned that fact from your
8 review of the various materials you looked at?
10 Q. And you learned that it was bought in 1979
11 secondhand; is that right?
12 A. That's what the material indicated that I
13 reviewed and the conclusions I came to.
14 Q. Did you -- do you know where Ferrara Foods got
15 this machine?
16 A. No, I do not.
17 Q. Do you know who the manufacturer of the dough
18 mixer was?
19 A. Yes. It is a Dutch manufactured machine and I
20 forget the name exactly, but I can look it up.
21 Q. Take your time. You can review whatever you
22 need to.
23 A. Tonvaer, T-O-N-V-A-E-R, and --
24 THE COURT: I'm sorry. What was the
25 spelling?
699
1 THE WITNESS: It's T-O-N-N-A-E-R.
2 Q. Okay. And how long did you examine the machine
3 for at the inspection?
4 A. Oh, 45 minutes to an hour.
5 Q. And what did you do?
6 A. I looked at the machine very carefully, I took
7 photographs of the machine, I made some measurements, and
8 that's it.
9 Q. You said you took some photographs?
10 A. I did.
11 Q. Now, did you ever meet the man involved in the
12 accident?
14 Q. Do you have any personal knowledge of what
15 happened on the date of the accident?
16 A. Personally not. I have the knowledge from the
17 material that I have reviewed.
18 Q. And after reviewing those materials, what was
19 your understanding of what happened?
20 THE COURT: Let's get what those materials
21 were that he reviewed.
22 MS. COTTER: I believe he stated it,
23 Judge.
24 THE COURT: Let's get it from him, please.
25 Q. Can you tell us again what materials you

700
1 reviewed?
2 A. The materials that I reviewed, I just
3 mentioned, which are the written statements from
4 Mr. Scoppa, the written statements of Mr. Miguel Rogel,
5 response of defendant's interrogatories, and the
6 photographs and the video.
7 Q. And after reviewing all of that information,
8 did you have an understanding of what happened on the date
9 of the accident?
10 A. As I understand, the, the material indicated
11 that on the day of the accident the machine was not in
12 operating condition, it did not perform what it was
13 supposed to do, it did not tilt the bucket to unload. The
14 bucket was in the upright position. The machine -- the
15 tilting mechanism did not work because parts were missing
16 and it had not been repaired in spite of that, and --
17 excuse me. Also, beside that, the grate on the top of the
18 bucket had been removed. In spite of the machine not
19 being in operating condition, the employer decided to use
20 the machine. In order to do so, he supplied the employee
21 with a step stool so he could look into the machine, and
22 they ran the machine, and then when the dough was mixed,
23 they did unload the machine in a horizontal position, and
24 then they stopped the paddles to unload the machine and
25 then they asked the employee to clean the machine in spite

701
1 of the ANSI standards that you never clean a machine when
2 it's running. The machine was running when Mr. Rodriguez
3 proceeded to clean the machine, and in doing so, he got
4 his hand caught in one of the paddles and he was severely
5 injured.
6 Q. Now, Mr. Visser just to go over what some of
7 what you just said, you said certain things had been
8 removed from the machine; is that right? I know you
9 mentioned one thing, the grate on the top of the machine?
10 A. Oh, yes. The inspection revealed that most of
11 the -- no, let me go back to that. When I inspected the
12 machine, the cover or grate was reinstalled on the
13 machine, so that was there, but the inspection revealed
14 that all the safety switches which were on the machine
15 when manufactured had been removed.
16 Now, these safety switches are switches that
17 are used that when you put the machine in the horizontal
18 position that's when you can start the paddles. As soon
19 as you move the machine to tilt in the vertical position,
20 the safety switch disconnects the paddles, you cannot turn
21 the paddles, and the machine comes down in the unloaded
22 position and you cannot start the paddles until it's going
23 up, until it's up in the horizontal position. These,
24 these switches had been removed. It was very obviously
25 where they were because the places where they had been
702
1 placed were still visible and the arm that operated them
2 was still on the machine.
3 Q. Okay. In addition to those safety switches,
4 and we'll come back to those, and the safety grate, did
5 you ever come to learn that a microswitch had been
6 disconnected?
7 A. I don't know about -- these switches sometimes
8 are called microswitches. I don't know which one you have
9 reference to.
10 Q. But you did come to learn that a tilting
11 mechanism was broken and it was -- the machine was still
12 being used?
13 A. That's right.
14 Q. And stepping away from those removal or those
15 pieces that you discovered were removed, how did the
16 machine generally appear when you examined it?
17 A. The machine was an old machine. From
18 information that I have reviewed since and from that point
19 I could tell that it was 1958 or '55 vintage machine and
20 it showed its age. It had been painted many times to the
21 point that you couldn't find a serial number on the
22 machine.
23 THE COURT: I'm sorry. You couldn't
24 find --
25 THE WITNESS: A serial number on the

703
1 machine. And it was in poor repair from an electrical
2 standpoint, from a safety standpoint.
3 Q. Did you notice any loose wires around the
4 machine?
5 A. That's what I mean, poor shape, electrical.
6 Q. Now, when you spoke earlier about the safety
7 switches that were obviously removed, in your opinion --
8 I'm going to draw your attention to something an expert
9 this morning talked about, the Handbook of Industrial
10 Safety Standards from 1929.
11 A. Yes.
12 Q. Do you have a copy of that with you that you
13 can take a look at to refresh your recollection if you
14 need to?
15 A. Yes, I have one.
16 Q. Now, I refer your attention to -- I believe
17 it's page 92, that outlined section, 370-159.
18 A. Yes, ma'am.
19 Q. Pertaining to dough mixers in the standard. An
20 expert for the plaintiff, Mr. Paul, this morning talked
21 about how this machine, in his opinion, although he only
22 looked at photographs and saw an inspection video --
24 THE COURT: Let me hear the question,
25 please. Overruled.
704
1 MR. DURST: It's not really a question.
2 THE COURT: Mr. Durst, overruled. Let's
3 hear the question first.
4 Q. He testified that in his opinion this machine
5 never had an interlock that is outlined in section 2A,
6 under this section never had an interlock on the grate.
7 A. That is true. This machine does not fall under
8 that category.
9 Q. Okay.
10 THE COURT: All right. Let me just --
11 first, is there a question before Mr. -- I'm sorry,
12 Mr. Visser. Did you complete the question? Let's
13 hear the question.
14 Q. Can you tell us what, if any, category of this
15 standard, 370-159, this machine falls under?
16 A. It falls under category two, which is called --
17 is called tilting type.
18 Q. Okay. And according to this standard, what
19 does a tilting type of dough mixer of the sort involved in
20 the accident require?
21 THE COURT: All right. And Mr. Visser,
22 please do not read from the item that you have before
23 you. That is not in record. Just review it to
24 refresh your recollection, and then you may respond to
25 the answer. All right?

705
1 A. All right. There are two types of horizontal
2 mixers, the tilting type that is manually tilted and the
3 tilting type that is automatically tilted with a motor
4 that tilts it forward. This machine is of the tilting
5 type that is automatic, and it was, as the standard
6 suggests or demands, equipped with switches which stops
7 the paddle of rotating inside the bucket as soon as you
8 tip it, and the standard is when, when you comply with
9 that standard, you do not have to interlock the gate on
10 top of the bucket.
11 Q. So if I understand you correctly, if you do not
12 interlock the grate --
14 Q. -- the requirement --
15 THE COURT: Overruled. Let me just hear
16 the question, please.
17 Q. If I understand you correctly, if you do not
18 interlock the gate, the requirement gives you another
19 option, it's an either or, either interlock the grate or
20 have an automatic power cutoff for the bowl; is that
21 right?
23 Q. And you examined this machine physically,
24 right? You didn't just look at photographs or a video,
25 right?
706
2 Q. And in your opinion, was the machine compliant
3 with the 1929 standard?
4 A. The machine was designed and manufactured in
5 compliance, but the switches had been removed now. You
6 can tell that by looking at the machine.
7 Q. Before we get to that, how was it in
8 compliance? Is that because it had the automatic power
9 cutoff that you just described?
10 A. Correct.
11 Q. And when you say it was obvious that the
12 switches had been removed, could you elaborate on that a
13 bit? Tell us what exactly you saw.
14 A. The place where the switches were removed are
15 flat spots on the machine where you can tell that it's
16 something had been removed, and the holes for the screws
17 were still there, and there were two places on the
18 machine, one for the bottom one and one for the top one,
19 and furthermore, the bucket, as I said before, had an arm
20 stick out, which would hit those switches in the down
21 position and in the up position.
22 Q. Okay. I'm going to show you what we've marked
23 as Defendant's D and E for identification and ask you to
24 take a look at these two photographs.
25 A. I don't know which -- yes.

707
1 Q. Now, do you recognize what is in those
2 photographs?
3 A. Yes, I do.
4 Q. What do you recognize them to be?
5 A. These are photographs that I did not take, but
6 they show the location of the top switch.
7 Q. Top safety switch?
8 A. The top safety switch. They show the location
9 where the top safety switch used to be.
10 Q. Okay. So in those photographs, the switch is
11 gone?
12 A. Yes.
13 Q. Okay. And do those fairly and accurately
14 depict the area where you saw that switch had been
15 removed?
16 A. Yes, ma'am.
17 Q. Do you know the date the photographs were
18 taken?
19 A. On 8/11/95.
20 Q. That was the date of the inspection that's in
21 the videotape?
22 A. I don't know. I don't remember that.
23 Q. Now, did you ever become aware of any OSHA
24 violations which were issued to the employer, Ferrara
25 Foods?
708
2 THE COURT: Yes, that's sustained.
3 MS. COTTER: Your Honor, could I have a
4 side bar on that?
5 THE COURT: All right. We'll take it in
6 the robing room.
10 MS. COTTER: Judge, I seek to ask this
11 witness about OSHA violations pertaining to the
12 employer. As the Court is aware, my action is against
13 the employer, so it's a direct action against the
14 employer, and as such, I should be able to inquire as
15 to OSHA, unlike the plaintiff, which was -- that was a
16 different inquiry on his case.
17 MS. SCOTTO: Your Honor, I actually thought
18 you ruled on this already.
19 THE COURT: I ruled on it with regard to
20 the plaintiff.
21 MS. SCOTTO: As far as OSHA violations are
22 concerned, whatever OSHA did, even if they did give a
23 citation, it's not relevant in this case. It's for
24 the jury to determine what OSHA regulations the Court
25 gives them and for them to determine if my client

709
1 violated OSHA, not for them to be told that the OSHA
2 inspector found the violation.
3 THE COURT: Ms. Cotter, have you put
4 anything before the Court with regard to OSHA
5 vis-a-vis your third party action against the third
6 party defendant?
7 MS. COTTER: Well, in this expert's report,
8 it says, you know, that he's going to talk about OSHA
9 violations issue too. He's not going to go into the
10 actual paperwork or even look at anything. He's just
11 going to say his understanding is OSHA requires, you
12 know, certain things and these weren't complied with.
13 MS. SCOTTO: And --
14 THE COURT: I'm sorry. With regard to this
15 particular expert vis-a-vis your action against the
16 third party defendant, have you turned over anything
17 to the third party defendant with regard to that?
18 MS. COTTER: A disclosure as to him, a
19 31.01 D.
20 MS. SCOTTO: Also, your Honor, the OSHA
21 report is not in evidence, so I don't know how he can
22 testify as to what OSHA did without having OSHA's
23 report in evidence.
24 MS. COTTER: He's not going to say what
25 OSHA did. He's not going to refer to the report.

710
1 He's just going to say what he came to learn based on
2 his review of many documents and the transcripts. It
3 was in the transcripts.
4 MS. SCOTTO: It's actually not in the
5 transcripts. He had -- Scoppa was asked if there were
6 OSHA violations and he said he didn't know, so
7 anything that comes in about OSHA has to be hearsay.
8 There is no report in and there is no evidence to it,
9 and in fact, I was going to have an application for a
10 mistrial because those questions were asked this
11 morning.
12 THE COURT: Okay.
13 MS. SCOTTO: Completely improper.
14 THE COURT: All right. With regard to your
15 aspect of your case, Ms. Cotter, vis-a-vis the third
16 party defendant, if that has not been disclosed with
17 regard to the violations cited within that OSHA
18 report, which of course, Mr. Durst was not able to
19 proffer based upon the failure of the maker of that
20 particular document to be available to testify before
21 the jury, in that, based upon my understanding, this
22 is an -- I would hate to call it an ancient document,
23 but document which an original is not available due
24 to, as I understand, I may be misunderstanding, but
25 based upon my understanding that OSHA's original

711
1 documents may have been compromised as a result of the
2 9/11 attack at the World Trade Center, so that with
3 regard to the original, if there are indeed original
4 OSHA documents available, they have not been brought
5 forth with regard to either Mr. Durst's case in chief
6 or with regard to your case in chief, Ms. Cotter, and
7 at this point you're calling this witness on your
8 case, and I assume part of this particular witness's
9 testimony relates and impacts the third party
10 defendant's action. Is that correct?
11 MS. COTTER: Yes, and he's not going to
12 testify as to the contents of the actual OSHA
13 violation documents.
14 MS. SCOTTO: But that is what he would be
15 doing if he says that there were violations cited, and
16 in -- sorry, your Honor. In fact, I would just like
17 to note that although plaintiff's counsel has made a
18 representation that the OSHA report is not available
19 due to the 9/11 attacks, I have never seen any
20 evidence supporting that position. I don't know if
21 that's accurate.
22 THE COURT: All right. At this point the
23 OSHA document itself, which we've each reviewed or at
24 least I have had copies of, and I assume that all
25 counsel have had copies of since they were part of the

712
1 pleadings in this particular case, again, and this was
2 part of the subject of our off the record discussion
3 in chambers both Friday and at other times, again,
4 that particular document, as I advised Mr. Durst when
5 he was attempting to introduce that document, that
6 document, because the particular document or the copy
7 of the document that we had before us had been
8 redacted and because that document did not include the
9 name of the maker of that document, that document in
10 and of itself could not be produced and introduced
11 into evidence as it was unless the maker of the
12 document came in and testified.
13 At this point, Ms. Cotter, that document
14 cannot be brought in likewise on your case, unless you
15 choose or you have the name of the maker of that
16 document and you elect to bring the maker of that
17 document into court.
18 MS. COTTER: Can I ask this witness based
19 upon his experience whether there were any actions of
20 this employer contrary to OSHA without referring to
21 violations?
22 THE COURT: You mean with regard to the
23 standards in the practice?
24 MS. COTTER: Um-hm.
25 THE COURT: All right. With regard to the

713
1 standard -- let me rephrase that.
2 With regard to the standards in the
3 industry, just as the prior witness, Mr. Paul, or
4 Dr. Paul referred to various standards in the industry
5 vis-a-vis OSHA, I have yet to hear anything from this
6 particular witness with regard to what the standards
7 in the industry are, but if he is to proffer testimony
8 with regard to the standards in his particular
9 industry vis-a-vis OSHA, then that is separate and
10 apart from the actual OSHA report, which cannot come
11 in independently of the maker of the OSHA report.
12 And --
13 MS. COTTER: That's fine. I'm --
14 THE COURT: With regard to any -- with
15 regard to any violations that are contained in that
16 report, but with regard to his knowledge of the
17 standard in the industry vis-a-vis OSHA, he may
18 comment upon what he understands as an engineer and
19 the standards in the industry vis-a-vis OSHA.
20 MS. COTTER: Okay.
21 MS. SCOTTO: Your Honor, can I just note
22 for the record, the OSHA report, I think, is about 30
23 pages. I was provided with 10 pages of the OSHA
24 report by plaintiff's counsel the Thursday before this
25 trial started. It was never part of his pleadings and

714
1 I have never been provided with the entire report.
2 MR. DURST: The problem is that you were
3 provided with it by OSHA themselves five days after
4 the accident.
5 THE COURT: All right. As I stated,
6 because that particular document that has been for
7 lack of a better word disclosed as an attachment to
8 various marked pleadings and other items that the
9 Court has had made available to it, I have no idea the
10 extent of that particular report. I can only say what
11 has been part of this particular case. I believe that
12 what the Court has had made available to it is perhaps
13 five to 10 pages. I have not counted the numbers, but
14 it is certainly not 30 pages.
15 So again, as I indicated, whatever this
16 particular witness might be able to disclose vis-a-vis
17 the standards of the industry as they relate to OSHA's
18 standards or guidelines, so long as he testifies that
19 he's aware of what the standards in the industry is, I
20 don't see any reason to preclude his testimony as
21 regards the standards in the industry, and indeed one
22 of the reasons that I did allow counsel, that being
23 defense counsel, to have available to it in advance of
24 the expert witness's testimony, that being the
25 industrial expert's testimony with regard to what the

715
1 standards of the industry are, I did make sure that
2 Mr. Durst turned over to all, each of you those
3 particular areas of the expert's testimony vis-a-vis
4 the standards in the industry, so to the extent that
5 you have that available to you, this expert will be
6 allowed to testify on what the standards in the
7 industry are.
10 the presence of all counsel and the jury:)
11 THE COURT: Just inspecting the premises,
12 ladies and gentlemen. All right. Let's go. Next
13 question.
14 MS. COTTER: Your Honor, before we go on,
15 I would move to admit Defendant's D and E into
16 evidence since the witness has identified them.
17 MS. SCOTTO: No objection.
19 MR. DURST: Just objection as to
20 foundation, your Honor. No argument necessary.
21 Whatever your ruling is is good with me. Just for the
22 record.
23 THE COURT: All right. Let's establish a
24 foundation.
25 Q. Mr. Visser, with respect to the pictures of the

716
1 safety switch that you spoke about earlier, I'll ask you
2 again, do you know when they were taken?
3 A. The photographs have a date on them.
4 Q. Okay. Can you tell me what the date is?
5 A. '95, 8/11.
6 Q. August 11, 1995?
7 A. Yes.
8 Q. And I asked if that was the date of an
9 inspection that we have a videotape of.
10 A. I'll have to look it up.
11 Q. Well, you could just say whether you know if --
12 A. I don't know.
13 Q. And does that photograph fairly and
14 accurately --
15 THE COURT: Just a second. Do all counsel
16 stipulate that that was the date of the inspection?
17 MS. SCOTTO: Yes.
18 MR. DURST: Not the date of his
19 inspection --
20 THE COURT: The date of the inspection
21 that --
23 Q. And Mr. Visser, do those photographs fairly and
24 accurately depict the pad for the safety switch that you
25 have spoken about earlier where the safety switch was

717
1 removed?
2 A. These photos show the place where the safety
3 switch used to be.
4 Q. And you saw that when you inspected this
5 machine?
6 A. I saw that place. I took pictures, but as you
7 know, my file had been destroyed.
8 MS. COTTER: Okay. Now I move -- I make a
9 motion at this time to --
10 THE COURT: No objection from third party
11 defendant?
12 MS. SCOTTO: No objection, your Honor.
14 MR. DURST: No objection, your Honor.
15 THE COURT: That's received in evidence,
16 and we'll publish it to the jury at this time.
17 (Defendant's Exhibits D and E, previously
18 marked for identification, were marked and received in
19 evidence.)
20 THE CLERK: The photographs have been
21 published, your Honor.
22 THE COURT: Can I have counsel at side bar?
25 Q. Mr. Visser, I'm going to show you photographs D

718
1 and E one more time. You see where --
2 THE COURT: Just one second, please. Hold
3 on.
4 Q. You see where there's a circle?
5 THE COURT: Just one second. All right.
6 So D and E have now been received in evidence. Okay.
7 Q. Mr. Visser, looking at exhibits D and E again,
8 do you notice that there is a circle on each of those
9 photographs?
10 A. Yes, I do.
11 Q. And did you put that circle there?
13 Q. Do you know what is circled exactly?
14 A. The circle is around the plate or the switch.
15 Q. And that's the plate or the switch that you
16 have testified was actually removed at the time you
17 examined this machine?
18 A. The circle is around the place that the switch
19 is supposed to be attached.
20 Q. And that is in both photographs the circle is
21 around the same place?
22 A. Same place.
23 Q. You can -- that's fine. Now, Mr. Visser, are
24 you familiar with A Model Code For Industrial
25 Establishment For The Guidance Of The Industry dated 1947

719
1 that Mr. Paul testified about this morning?
2 A. I have received a copy of it from you, yes.
3 Q. And have you had a chance to review it?
4 A. I have.
5 Q. And in your opinion, was there anything about
6 this dough mixing machine that was in violation of any
7 standard in that document?
8 A. I couldn't find anything that was in violation.
9 MS. SCOTTO: Objection. Is that at the
10 time it was manufactured?
11 THE COURT: I'm not sure.
12 Q. Well, at the time it was manufactured.
13 A. Pardon me?
14 Q. At the time it was manufactured.
15 A. This -- this -- this Geneva model code for
16 industrial establishments is a guideline to be presented
17 to the industry and to different governments for adoption
18 or rejection, and it's dated 1949, very long before this
19 machine was built.
20 Q. Now, in your opinion was there anything about
21 the machine at the time it was manufactured that was in
22 violation of that suggestion, that guideline?
23 A. I don't recall there is anything.
24 Q. Now, when you say that was a guideline, how
25 about the Handbook of Industrial Safety Standards dated

720
1 1929 that you spoken about? Is that law or a regulation,
2 or is that also an advisory guideline?
3 A. Those are guidelines. The only regulation that
4 we have is OSHA.
5 Q. And are you familiar with the standards in the
6 industry vis-a-vis OSHA?
7 A. I know the standards in OSHA, yes.
8 Q. And --
9 THE COURT: I'm sorry, sir. You -- I'm
10 sorry. What did you say?
11 THE WITNESS: I know the standards that
12 OSHA demands from this kind of machine.
13 Q. What is OSHA? Just tell us briefly what it is.
14 A. Occupational health and safety administration.
15 Q. And did you generate an opinion in this case as
16 to whether any actions by Ferrara Foods were contrary to
17 OSHA?
18 A. Yes, quite a few.
19 Q. And could you explain that?
20 A. Ferrara Foods was cited by OSHA for not --
22 Q. Without saying what they were cited for, in
23 your opinion --
24 MS. SCOTTO: Objection to the question.
25 THE COURT: I'll allow her to rephrase.

721
1 Q. In your opinion what, if any, actions by
2 Ferrara Foods were contrary to the standards in the
3 industry as you know them vis-a-vis OSHA?
4 A. The removal of the top grate or cover on this
5 particular machine and not, not tagging out or locking out
6 the machine that was not in operable condition.
7 Q. And tagging out means?
8 A. Tagging out means when your machine is not
9 functionally operable it should not be operated. You lock
10 it out. Now, locking out means that the individual who is
11 going to repair the machine is sure that nobody else can
12 push the button while he's in the machine or having his
13 hand in the machine, so what he does is he has a little
14 lock, padlock, and he has the only key to this padlock and
15 he closes the main switch pad, locks it, keeps a key.
16 That way he is assured that nobody can come and start the
17 machine while he's working on it.
18 Q. Any other actions that were contrary to OSHA,
19 in your opinion?
20 A. OSHA specifically says you cannot clean or work
21 on a machine that is in -- is rotating or working, and
22 this machine was worked on or cleaned while it was in
23 operation.
24 Q. Now, after reviewing all the information you
25 reviewed in the case, photographs, Mr. Durst's inspection

722
1 video, did you formulate an opinion within a reasonable
2 degree of engineering certainty as to what condition this
3 machine was in at the time of the accident?
4 A. At the time of the accident, the machine was
5 not in operable condition. It had been modified,
6 cannibalized really of all safety equipment.
7 Q. Cannibalized?
8 A. Cannibalized of all safety equipment.
9 Q. And was that by Ferrara Foods?
10 A. I do not know who did it, but at the time that
11 I inspected it in '96, the only thing that had been put
12 back that was not there at the time of the accident was a
13 top grate. The rest was still missing.
14 Q. And did you formulate an opinion within a
15 reasonable degree of engineering certainty as to whether
16 the plaintiff did anything that was negligent at the time
17 he was using the machine?
19 THE COURT: I'll allow it. Do you have a
20 review of what he reviewed beforehand? Let's restate
21 that if --
22 Q. What did you review -- what did you review
23 before formulating your opinions?
24 A. The opinion that I formulated when I first
25 wrote my report? Are we asking that? I don't know what

723
1 we're asking.
2 Q. What have you reviewed in the case in total?
3 A. The material that I reviewed that I wrote my
4 report I already mentioned. Since then I received
5 additional piece of information from you. Which one do
6 you want me to talk about?
7 Q. Just -- I guess tell us all of those. Restate
8 what you stated earlier and tell us what you received
9 additionally.
10 A. When I wrote the report, which is dated October
11 18, 1996, I reviewed my inspection, of course, and the
12 photographs that I took at the inspection, a written
13 statement from Mr. Edward Scoppa, the third, a written
14 statement of Mr. Miguel Rogel, who was a plant supervisor
15 at Ferrara Foods, response of the defendant's
16 interrogatories by the Drust law firm dated 11/15/95,
17 photographs that I took, as I said, and the video taken by
18 the Drust law firm. Since then I have -- excuse me --
19 received and reviewed material. I should mention that my
20 file was destroyed as of September 18, 19 -- 2000 based on
21 information we got from Quirk and Bakalor to get rid of
22 the file because the case was dismissed or whatever. We
23 don't know what happened, but we know that we were asked
24 to destroy the file.
25 Q. Based upon all the information you reviewed,

724
1 did you formulate an opinion within a reasonable degree of
2 engineering certainty as to whether plaintiff, the
3 plaintiff, Mr. Rodriguez, was negligent in anything he did
4 with the machine?
5 A. The report that I made before that states my
6 opinions and conclusions is, one, the lack of proper
7 training to never work on a machine which is running, lack
8 of proper training to disconnect power before servicing
9 equipment, management's insistence on operating equipment
10 in disrepair and management's willful disassembly of
11 existing machine safety features.
12 Q. And how about Mr. Rodriguez, did you formulate
13 an opinion as to whether he did anything that was
14 negligent at the time moment of the accident?
15 A. Well, he cleaned the machine while the machine
16 was working, and that's a no no.
17 Q. You mean while it was running, while it was on?
18 A. While the paddles were running, yeah.
19 MS. COTTER: I have nothing else at this
20 point. Thank you.
21 MR. DURST: Thank you.
23 BY MR. DURST:
24 Q. Good afternoon, sir. Thank you for being here
25 with us.
725
bd P. Visser - Defendant - Cross (Mr. Durst)
1 A. May I have your name, please?
2 Q. I said good afternoon.
3 A. Yeah, but your name.
4 Q. My name's John Durst.
5 A. Thank you.
6 Q. Or as you've been saying Drust, but actually
7 it's Durst. I'll speak up. Okay? If you don't hear me,
8 let me know.
9 A. Thank you.
10 Q. Just quickly on your background, when were you
11 first retained in this case?
12 A. Sometime before the inspection by the firm of
13 Quirk & Bakalor.
14 Q. Okay. And who were you working for at that
15 time?
16 A. I -- I'm an associate and was at that time an
17 associate of Engineering Systems, Inc, a consulting firm
18 in Aurora, Illinois.
19 Q. Now, about your background, I'm just going to
20 go over that quickly. You have an undergraduate degree,
21 do you?
22 A. I have an undergraduate degree in engineering.
23 Q. Okay. Do you have a graduate degree in
24 engineering?
25 A. I don't have a degree because I quit school and

726
1 teaching before I received it. I'm short a few hours.
2 Q. So do you have a master's degree?
3 A. I said no.
4 Q. And the degree you have, is there a specialty
5 or is it a bachelor of science?
6 A. It's a mechanical engineering degree.
7 Q. Okay. And you received that in what year?
8 A. 1950.
9 Q. After that you worked in a paper processing
10 plant in Argentina?
11 A. No.
12 Q. Paper -- a printing and paper processing plant
13 in Argentina?
14 A. Printing, yes.
15 Q. Okay. And then you returned to the, to the
16 United States, worked as a research assistant; is that
17 correct?
18 A. An instructor, a research assistant and
19 instructor in the industrial engineering department.
20 Q. You were an instructor; is that the same as an
21 assistant professor or a professor?
22 A. There are three ranks, instructor, assistant
23 professor, and professor.
24 Q. Okay. You weren't an assistant professor?
25 A. No, sir.
727
1 Q. And you weren't a professor?
3 Q. Were you taking under -- were you taking
4 graduate courses at the time you were being an instructor?
5 A. Yes.
6 Q. Okay. So really you were taking graduate
7 courses, and graduate students do some instructing; is
8 that correct?
9 A. Well, I instructed graduate students and
10 undergraduate students.
11 Q. You instructed -- you were taking graduate
12 courses and you instructed graduate students but you had
13 no graduate degree?
15 Q. Okay. And then after that -- you did that for
16 what, three years while you were taking, studying for your
17 graduate degree?
18 A. Two, three years.
19 Q. Two to three years, and you -- then you worked
20 for five years at General Electric in Schenectady?
22 Q. And they -- and you did machining and
23 manufacturing processes and techniques there at General
24 Electric?
25 A. I was machine ability engineer and I used to

728
1 teach different General Electric plants who ran machine
2 tools how to improve their efficiency and safety on using
3 machine tools.
4 Q. Just to state the obvious, General Electric
5 didn't have any dough mixers or bakery equipment at work
6 there, did they?
7 A. No, I don't think so.
8 Q. And then after that, from '60 to '69, you
9 worked for General Electric Company in Massachusetts?
11 Q. And there you worked on aircraft engines; is
12 that correct?
14 Q. And fuel controls?
15 A. Aircraft engines, fuel controls.
16 Q. Fuel cells?
17 A. Fuel cells.
18 Q. Jet I think I think components?
19 A. Yes.
20 Q. Compliant propulsion?
21 A. That's a jet engine.
22 Q. Okay. Jet engine, okay. So you did that for
23 nine years. After that you went to work for Continental
24 Can Company for 11 years?
25 A. That's right.
729
1 Q. Now, they make cans, do they?
2 A. Yes.
3 Q. Okay. And there you worked --
4 A. But I didn't make cans. I made the equipment
5 that makes cans.
6 Q. For making cans?
7 A. And fills cans and --
8 Q. Up until that point you had no experience with
9 dough mixers, am I correct, as far as manufacturing or --
10 A. Specifically dough mixers, no.
11 Q. And then you went to work for a company that's
12 in the business of providing expertise to various
13 entities; is that correct?
14 A. Yes.
15 Q. And that company, Packer Engineering in
16 Naperville, they advertise, do they not, for work from
17 attorneys in various attorney magazines?
19 Q. You've never seen them advertise?
20 A. I have not, not while I was there.
21 Q. Uh-huh. But that's basically what they do,
22 they're hired out to work, they retain -- they're retained
23 in large measure by attorneys; is that right?
24 A. At the time, yes, the insurance companies and
25 attorneys.
730
1 Q. And --
2 A. Besides that, on private, by companies too.
3 Q. And then you worked for them for what, for six
4 years doing that expert testimony primarily?
5 A. I worked for them for six years, but I did not
6 do only expert testimony. I did a lot of work on safety
7 considerations for industry.
8 Q. Okay. And then you went out and you started
9 working for Engineering Systems, Inc?
10 A. As an associate, yes.
11 Q. And they do the same thing, right, that's their
12 business providing expertise to lawyers and litigation as
13 well as maybe industry?
14 A. Industry as well, yes.
15 Q. Okay. And are you retired from there now?
16 A. Semi, yes.
17 Q. Now, when you would get a file working there,
18 you'd be told that you were going to work on, say, the
19 Rodriguez investigation, right?
20 A. Nobody tells me.
21 Q. They wouldn't tell you what you were going to
22 be working on?
23 A. I would get a call from a company or a lawyer
24 to ask if I would take a case and I said yes or no.
25 Q. Did you ever turn down a case?

731
1 A. Oh, yes.
2 Q. Up until, you know, when you did work in the
3 industry, you never worked with dough mixers, right, you
4 never had anything to do with dough mixers?
5 A. I don't recall a specific dough mixer case.
6 I've done a lot in the food industry, but I don't remember
7 all the pieces of equipment that I worked on.
8 Q. I mean whoever retains you, you also provide
9 expertise regardless of which piece of equipment it is,
10 right?
11 A. Oh, no, no, no, no, no. I do not do anything
12 but equipment machinery manufacturing environments. I
13 don't do cars or airplanes or bridges or any of that
14 stuff.
15 Q. A dough mixer would be within your area of
16 expertise?
18 Q. Have you ever manufactured dough mixers?
19 A. No.
20 Q. Have you ever worked on a dough mixer yourself?
22 Q. Did you ever operate a dough mixer?
23 A. No, I don't think so.
24 Q. Have you ever removed dough from a dough mixer,
25 just that part, just the removal of dough mixer from a

732
1 dough mixer?
2 A. No.
3 Q. Have you designed controls for dough mixers at
4 any time in your --
5 THE COURT: Let's get to a relevant
6 question, Mr. Durst.
7 MR. DURST: May I get an answer to that
8 one, your Honor?
9 THE COURT: He said no. Let's get to a
10 relevant question.
11 MR. DURST: Okay.
12 Q. All right, sir. You mentioned what you had
13 reviewed for this case, right?
14 Did you review any of the testimony from any of
15 the deposition transcripts?
16 A. The reviews that I made for this case today
17 included deposition transcripts.
18 Q. Did you read the testimony in the transcripts?
19 A. Yes.
20 Q. At any point in time?
21 A. Of the one that I received, yes.
22 Q. Which one did you receive?
23 A. I received the, the transcript of
24 Mr. Scapolla's(ph) deposition, Scoppa.
25 Q. Did you read Mr. Scoppa's deposition?

733
1 A. I certainly did.
2 Q. What is Mr. Scoppa's position with -- what
3 company does he work and what position does he --
6 THE COURT: All right. You reviewed, sir,
7 the EBTs of Mr. Scoppa, Mr. Saachi?
8 MR. DURST: No, he didn't say that, your
9 Honor. You're looking at --
10 THE COURT: Please, no comments from you,
11 Mr. Durst. All right?
12 You reviewed Mr. Scoppa, Mr. Rogel's
13 statements? Was that statements or EBTs?
14 THE WITNESS: Mr. Rogel wrote a statement.
15 THE COURT: And Mr. Scoppa's statement or
16 the EBT, which was that?
17 THE WITNESS: Well, the first time when
18 I -- before I made my first report, I reviewed
19 Mr. Scoppa's statement, but I don't remember what it
20 says.
21 THE COURT: All right. So --
22 THE WITNESS: The second time --
23 THE COURT: The statements and then the EBT
24 of the plaintiff, pictures and videos, and what else
25 did you review?

734
1 THE WITNESS: But since then I reviewed
2 Mr. Scoppa's deposition.
3 THE COURT: Okay. Very good.
4 THE WITNESS: Which was taken on 5/2 of
5 '97.
6 Q. Now, tell us, the jury, then what was
7 Mr. Scoppa's position and tell them what company he worked
8 for.
12 Q. Do you know what company Mr. Scoppa worked for?
13 THE COURT: All right. Let's stipulate
14 with regard to the testimony or the statements of the
15 various individuals thus far, plaintiff's EBT, Scoppa,
16 and Mr. Rogel.
17 MR. DURST: I don't know what --
18 MS. SCOTTO: I don't understand, your
19 Honor.
20 THE COURT: Approach.
23 THE COURT: We have a stipulation from the
24 attorneys with regard to certain items that have been
25 placed before the jury.

735
1 MS. COTTER: Yes, your Honor.
2 MS. SCOTTO: Your Honor, I'm going to
3 stipulate that Mr. Scoppa and Mr. Rogel were employees
4 of Ferrara at the time of this occurrence.
5 Q. All right. Sir, do you know what position
6 Mr. Scoppa held at Ferrara?
8 THE COURT: All right. The stipulation is
9 that they were employees at the time of the accident,
10 is that correct, Mr. Scoppa and Mr. Rogel? All right.
11 Let's take it from there.
12 Q. Do you know what position Mr. Scoppa held at
13 Ferrara?
15 THE COURT: With regard to what was turned
16 over? Is that it?
17 MR. DURST: No, your Honor, just --
18 THE COURT: Excuse me, Mr. Durst. There is
19 an objection by someone else.
20 MS. SCOTTO: Your Honor, I don't understand
21 the relevance.
22 THE COURT: Well, I don't either, but maybe
23 we'll get there, but with regard to the particular
24 statement; is that correct?
25 MS. SCOTTO: He -- Mr. Scoppa was an

736
1 employee of Ferrara at the time.
2 THE COURT: But with regard to the
3 statement, if the statement that was turned over by
4 Ms. Cotter's predecessor, if that revealed anything, I
5 don't know what it revealed, I don't know what the
6 statement is.
7 MS. SCOTTO: Neither do I, Judge.
8 THE COURT: All right. So I'm in the dark
9 as regards the statement. And only -- excuse me.
10 Is --
11 MR. DURST: I'm not going to ask about the
12 statement. I'm not even talking about the statement.
13 THE COURT: All right. There is a
14 stipulation therefore, ladies and gentlemen, before
15 you that Mr. Scoppa and Mr. Rogel were employees of
16 the third party defendant when certain information may
17 have been turned over to -- is that Dr. or Mr.
18 Visser -- by the defendant's predecessor as defense
19 attorney. Is that correct, Ms. Cotter?
20 MS. COTTER: Yes.
21 MS. SCOTTO: Your Honor, I don't know if
22 they were employees at the time it was turned over.
23 THE COURT: Well, at the time of the
24 accident at any rate.
25 MS. SCOTTO: Yes.

737
1 THE COURT: So long as we're on the same
2 page. At the time of the accident, Mr. Scoppa and
3 Mr. Rogel were employees of the third party defendant
4 and Ms. Cotter's predecessor, as defendant, turned
5 over those particular items to Mr. Visser in advance
6 of his entry into the case. Is that a correct
7 assessment of this, Ms. Cotter?
8 MS. COTTER: Whatever Mr. Visser had, yes.
9 THE COURT: Okay. We're all on the same
10 page now, Mr. Durst?
11 MR. DURST: Sure.
12 Q. Okay, sir. Do you know what his position was
13 with Ferrara Foods?
14 A. Yes.
15 Q. What was it?
16 A. Vice-president of Ferrara Foods and
17 Confections, Inc.
18 THE COURT: This is -- I'm sorry. This is
19 which individual?
20 THE WITNESS: Mr. Scoppa.
22 objection to this. I don't see why it's relevant.
23 THE COURT: Well, perhaps we will be
24 enlightened.
25 MR. DURST: Yes.

738
1 THE COURT: I don't know either, but that's
2 why a trial -- that's the purpose of a trial.
3 Q. Sir, and did you read in the testimony --
6 THE COURT: Sustained. Did you read the
7 EBT testimony of any of these individuals, sir?
8 THE WITNESS: Did I read what, sir?
9 Ma'am.
10 A. Did I read the position? Yes.
11 THE COURT: No, no.
12 MR. DURST: Yes.
13 THE COURT: Excuse me. Did you read a
14 statement or did you read an EBT? Which is it, sir?
15 THE WITNESS: I don't know what an EBT is.
16 MR. DURST: Deposition.
17 MS. COTTER: The transcript.
18 MR. DURST: He did read the deposition.
19 THE COURT: Excuse me. In advance of your
20 coming here, sir, in preparation of this case, did you
21 review statements or did you review EBT testimonies of
22 Mr. Scoppa and or Mr. Rogel?
23 THE WITNESS: The answer is very simple.
24 I reviewed in 1995 a statement by Mr. Scoppa, but I
25 don't remember what it says. Since then I received

739
1 the, the transcript of his deposition and I reviewed
2 that and I do remember what that says.
4 Q. Now, sir, he was an electrical engineer,
5 correct?
6 MS. SCOTTO: Objection, your Honor.
7 Objection.
8 MS. COTTER: Objection to the extent he's
9 reading a transcript of a witness.
10 THE COURT: Side bar, ladies and gentlemen.
11 Give us a few moments.
16 outside of the hearing of the jury.
17 MS. COTTER: Your Honor, I just don't know
18 where Mr. Durst is going with reading a transcript to
19 the witness. It's one thing if he said, what did you
20 review, you know, do you recall what the testimony
21 said, but he's basically opening it to a certain page
22 and almost trying to impeach this liability expert
23 with third party defendant's vice-president's
24 testimony which was taken in 1997. I just don't know
25 where this is going, and I object to the relevance of

740
1 it and the way he's trying to use it.
2 THE COURT: Mr. Durst, what are you doing
3 with the EBT of Mr. Scoppa?
4 MR. DURST: Number one I'd like to impeach
5 the witness's knowledge of the facts of the case.
6 That is what I'm in the process of doing at this
7 point.
8 THE COURT: I'm sorry. I'm sorry. Wait,
9 wait, wait. Say that again.
10 MR. DURST: Impeach the witness's knowledge
11 of the facts of this case.
12 MS. COTTER: I'm going to ask Mr. Durst.
13 THE COURT: I'm not quite sure what you're
14 doing I'm at a loss. What is the EBT that you have
15 before you right now?
16 MR. DURST: It's a deposition of Scoppa.
17 THE COURT: And what are you trying to do
18 with the EBT of a different witness?
19 MR. DURST: I'm going to question the
20 witness with this witness with regard to what
21 Mr. Scoppa had stated to determine whether or not he
22 even remembers what Mr. Scoppa stated, number one;
23 number two, to show that Mr. Scoppa was an electrical
24 engineer. Mr. Scoppa testified that there were never
25 any interlocks on this machine and that, therefore, I

741
1 think that's relevant information as to whether this
2 witness knows Mr. Scoppa, an engineer electrical
3 engineer. He testified that there was never an
4 interlock on this machine. Does this witness know
5 that or does this witness not know that?
6 MS. SCOTTO: Your Honor, may --
7 MS. COTTER: Your Honor --
8 MS. SCOTTO: May I also add --
9 THE COURT: Just give me a second. I need
10 to get my trial book. Give me one quick second.
12 MS. SCOTTO: Judge, may I respond to
13 Mr. Durst? Mr. Scoppa is not an electrical engineer.
14 His transcript says he took electrical engineer in
15 college. He never completed it. He does not have a
16 degree, and Mr. Durst cannot read this transcript to a
17 witness that's on the stand. I object to it based --
18 MS. COTTER: It's as simple --
19 MR. DURST: I haven't read the transcript
20 one time.
21 MS. COTTER: Right, but you have every
22 right to read this transcript --
23 MR. DURST: I'm not reading. I'm not
24 reading it. I'm just asking him questions.
25 MS. COTTER: It's the same difference.

742
1 THE COURT: Excuse me.
2 MS. COTTER: You have a right to impeach --
3 THE COURT: Excuse me. You see the court
4 reporter over here? She is diligently trying and she
5 is a substitute court reporter and we thank her
6 profusely. I'm sure she did not realize what she was
7 getting herself into when she was substituting for
8 someone else, but please everyone understand this.
9 She's very good at what she does. She cannot take
10 down the transcript of two individuals speaking at the
11 same time.
12 MS. COTTER: May I be heard?
13 THE COURT: So let's start with you,
14 Ms. Cotter, and Mr. Durst, please relax. It is close
15 to witching hour here, so relax.
16 MS. COTTER: Respectfully, Mr. Durst is
17 trying to get in the back door what he can't get in
18 the front. He's going to have an opportunity to read
19 any transcripts. Mr. Scoppa will likely testify. He
20 will have an opportunity to impeach a witness that
21 comes in. He is not to use a transcript from Ed
22 Scoppa to impeach a liability witness whose
23 transcript -- it's completely improper. He will have
24 an opportunity to read that entire transcript to the
25 jury and bring out the facts he is trying to bring out

743
1 through the wrong witness.
4 THE COURT: What are you attempting to do
5 in your questioning of this particular witness with a
6 transcript that's not his transcript?
7 MR. DURST: I will not read the transcript,
8 your Honor.
9 MS. COTTER: But you're still blurting out
10 facts that are contained in the transcript to get
11 those facts before the jury.
12 MR. DURST: Correct. To see if the witness
13 knows those facts.
14 THE COURT: Knows which facts?
15 MR. DURST: The facts concerning the
16 interlocks, whether there is ever an interlock on the
17 machine.
18 THE COURT: Were you present during the
19 direct examination of this witness?
20 MS. SCOTTO: Your Honor, may I add, this
21 witness inspected the machine, he knows whether or not
22 there is an interlock, he is an engineer. It doesn't
23 matter what Mr. Scoppa said.
24 THE COURT: Mr. --
25 MR. DURST: I'll try to -- I'll skip over

744
1 it. I don't want to make a big federal case out of
2 it.
3 THE COURT: Mr. Durst, let's just say this.
4 The EBT testimony of Mr. Scoppa, if you're attempting
5 to impeach, can be utilized, but not with this
6 witness. Is that clear, sir?
7 MR. DURST: Yes, sir. I mean yes, your
8 Honor.
9 THE COURT: I take that as a badge of
10 courage on my part, yes, sir. With regard to this
11 witness, he's limited to his own testimony and the
12 information that he had available, and thus far, I
13 think that's consistent with what we've heard thus
14 far.
15 Just before everyone leaves, it is now by
16 my watch 10 minutes to the witching hour, so ladies
17 and gentlemen, there is still one other expert left, a
18 hand expert.
19 MS. COTTER: There is.
20 THE COURT: We're not going to reach that
21 expert. We may not even be done with this expert.
22 MS. COTTER: Well, let's --
23 MR. DURST: We're not going to finish with
24 this witness.
25 THE COURT: Close the door, please. So the

745
1 question is we're on cross, you were on cross, and --
2 MS. COTTER: I won't have anything.
3 THE COURT: Well, I don't know what
4 Ms. Scotto might have. I'm not limiting her
5 examination, so to the extent that we are not done
6 with this particular witness, this witness should know
7 that he is required to be available.
8 MS. COTTER: He has a 7:00 a.m. flight.
9 THE COURT: That has nothing to do with the
10 Court. All right? So with regard to this witness, we
11 are not concluded with this particular witness's
12 testimony unless we conclude it in 10 minutes. I'm
13 not asking this jury to stay beyond that. All right?
15 the presence of all counsel, the witness, and the
16 jury:)
17 THE COURT: The objection is sustained.
18 Q. Now, was there ever -- was there ever an
19 interlock on the gate to this machine, the safety gate?
20 A. No.
21 Q. Never an interlock, correct?
22 A. As far as I know, no.
23 Q. By the way, did you review anything with regard
24 to Margot Tonnaer's testimony?
25 A. Pardon me?
746
1 MS. COTTER: Objection, asked and
2 answered.
3 Q. Do you know who Margot Tonnaer is?
4 THE COURT: With regard to this witness,
5 that is overruled.
6 A. No.
7 Q. You don't know who she is, right?
8 A. From the name I think she is related to the
9 machine manufacturer, but that's all.
10 Q. Did you ever review Mr. Rogel's deposition
11 testimony?
12 A. No. His statement.
13 Q. Okay. Did you ever review Cirro Rodriguez's
14 testimony? Do you know who Cirro Rodriguez is?
15 A. Yes, I do know who he is, and I reviewed his
16 testimony earlier, after I read the report, but again, not
17 lately.
18 Q. You did review it?
19 A. I recall that I probably reviewed it, yes.
20 Q. Can you tell me what you recall as to what
21 Mr. Rodriguez said he was doing at the time of the
22 accident?
24 THE COURT: If it's relevant to what
25 Mr. Visser testified to before, I'll allow it.

747
1 THE WITNESS: Am I supposed to answer that
2 question?
3 THE COURT: If it's relevant to your
4 testimony here vis-a-vis your testimony before.
5 A. Okay. I recall that he said that he was
6 cleaning the machine when the paddles were rotating
7 because he says little balls of dough would be propelled
8 and he could catch them and that's what his hand caught.
9 Q. Did he say he was cleaning it or removing the
10 dough?
11 A. He was cleaning it.
12 Q. So that's your understanding as to what he was
13 doing, correct, he was cleaning it, not that he was
14 removing dough?
15 A. That's right. He was cleaning it.
16 Q. And you got that information from Mr. Rogel's
17 written statement, right?
18 A. And from his -- from Mr. Rodriguez's testimony,
19 deposition.
20 Q. I'm going to give you that deposition testimony
21 and I would like you to point to me somewhere in that
22 deposition testimony where Mr. Rodriguez said that he was
23 cleaning the machine.

748
1 Q. Now, do you know what he testified to here?
2 A. What I testified to?
3 Q. No. What Mr. Rodriguez testified to what he
4 was doing at the time?
5 A. No, I do not, no.
6 Q. Pretty important as to what he was -- how much
7 responsibility is his, isn't it, as to exactly what he was
8 doing at the time? It's pretty important to you in making
9 your evaluation, isn't it?
10 A. Well, it is important to do -- that he was
11 working on the machine, while it was working, while it was
12 rotating. That's important. Not that he was removing the
13 dough or cleaning. Cleaning is worse than removing the
14 dough, but both are unacceptable.
15 Q. Cleaning is to remove --
16 THE COURT: I'm sorry. You said that both
17 were what, sir?
18 THE WITNESS: Both are not according to
19 OSHA standards. You cannot work with a machine
20 removing dough or cleaning it while the paddles are
21 rotating.
22 Q. Now, do you know whether he was told to remove
23 the dough by using the blades to push the dough up and
24 then to grab it?

749
2 Q. Now, with regards to the standards, sir, let me
3 just show you --
4 MR. DURST: Well, I'd like to ask that
5 this be marked as a plaintiff's exhibit, which is the
6 Handbook of Industrial Safety Standards, 1929 edition.
7 THE COURT: Just ask him if he's familiar
8 with it.
9 MR. DURST: Okay.
10 Q. Are you familiar with it?
11 A. Yes. I -- I was asked about it this morning.
12 Q. That's right. When was the first time you saw
13 it?
14 A. I saw it when Ms. Cotter sent it to me, which
15 was five days ago.
16 MS. COTTER: By counsel when counsel gave
17 it to us.
18 Q. Now, when you're evaluating whether a machine
19 is safe, isn't one of the first things you do is look at
20 the standards that apply to dough mixers if you're
21 evaluating the safety of a dough mixer?
22 A. Yes, sir. I have about 10 of them here.
23 Q. Did you ever look at the ANSI standards?
24 A. Yes, sir.
25 Q. You did. Now, the ANSI standards, am I

750
1 correct, require that interlocks must be present on the
2 safety gate so that when you open the safety gate it shuts
3 off the motor?
4 A. No.
5 Q. That is not correct?
6 A. That is not correct.
7 Q. What ANSI standards do you have that you're
8 referring to?
9 A. Which one would you like to see?
10 Q. I would like to see whichever ones that you're
11 referring to, that you looked at.
12 A. Well, let me --
13 THE COURT: Just look at it yourself, sir,
14 before you respond to that.
15 A. Yes. This is the industrial OSHA standard of
16 1983.
17 Q. That -- the -- the OSHA standard, the ANSI
18 standard -- OSHA applies to employees, correct?
19 A. It reflects what ANSI says.
20 Q. Well, OSHA refers --
21 THE COURT: All right. Just one second,
22 sir. Do you have the ANSI standards before you?
23 THE WITNESS: I don't think I have the
24 ANSI standards here.
25 THE COURT: Okay.

751
1 Q. Did you ever look at the ANSI standards?
2 A. I don't recall if I did or not because they
3 reflect the OSHA standards.
4 Q. But you never looked at the ANSI standards that
5 you can recall, right?
6 A. That's right.
7 Q. All right. ANSI promotes standards which
8 govern manufacturers that provide standards for
9 manufacturers in making machines, right?
11 Q. Now, OSHA doesn't apply standards that apply to
12 manufacturers, right? They rule employers at a workplace,
13 right?
14 A. No. They apply to both.
15 Q. They apply to both?
16 A. Correct.
17 Q. So if you have an OSHA violation, that means
18 that the machine when the -- that the manufacturer must
19 comply with that OSHA regulation?
20 A. The machine manufacturer does comply with the
21 OSHA regulation because otherwise he couldn't sell his
22 machine.
23 Q. Okay. Is that right? So if the OSHA
24 violations -- if there was an OSHA violation on this
25 machine indicating that the cover was in violation because

752
1 it could be lifted without automatically shutting off the
2 machine, that would be a violation if the cover could be
3 lifted without automatically shutting off the machine,
4 that would be a violation of OSHA, right?
5 A. No. On that machine OSHA does not require a
6 safety switch on the cover.
7 Q. Didn't OSHA cite the employer?
10 Q. Did you review the OSHA violations?
11 A. Yes, sir.
12 Q. Wasn't one of them --
15 MR. DURST: He's testifying to his
16 knowledge, your Honor.
17 THE COURT: Sustained. We have had this
18 before, Mr. Durst. Let's move forward. Let's move.
19 Actually, ladies and gentlemen, this would
20 be an appropriate time for us to break. We'll be back
21 here by popular demand tomorrow morning. Today is
22 only what, Tuesday. We'll be back tomorrow by popular
23 demand, or command, whichever you like. All right,
24 ladies and gentlemen? This is what radio used to be
25 like, as I'm told by my grandmother. Stay tuned,

753
bd Proceedings
1 because the shadow knows, and you'll know tomorrow
2 what the shadow knows.
3 Obviously, ladies and gentlemen, I'm trying
4 to keep this light with joy and jubilation as much as
5 possible and let you know that we'll be together again
6 tomorrow, and I look forward to seeing you ladies and
7 gentlemen tomorrow. And that's why I'm going to say
8 again, because I understand from my secretary that
9 that stomach virus is going around, so please don't
10 kiss anyone with that stomach virus. All right? I
11 insist. All right? I want you all back here. We
12 only have two alternates now. All right, everyone?
13 And just for scheduling purposes, while we
14 thought we would have been concluded with this case by
15 Friday, at this point you know, of course, that Monday
16 we commemorate Memorial Day, which means that the
17 Court is not in session. I assume that most of your
18 employers are also observing Memorial Day. To the
19 extent that they do not, I'm sorry to say, ladies and
20 gentlemen, that some of you may have to go back to
21 work on Monday. And I know I'm getting wet before it
22 rains, but to the extent that some of you may have to
23 go back to work on Monday because we are continuing
24 and are in session but are not going to actually be in
25 session on Monday May 29, is it, 31st, May 31, those

754
bd Proceedings
1 of you whose employers require you to be at work on
2 Monday, May 31 when Memorial Day is observed, the rest
3 of us you will have to do that because the documentary
4 proof that you will be here during jury duty will not
5 reflect that we were actually sitting on Monday, which
6 is the day that we observe Memorial Day.
7 We will, however, be in session and
8 anticipate being in session the entire day on Tuesday
9 and we anticipate that we should have the case to you
10 Tuesday or Wednesday afternoon. All right, everyone?
11 So that's for your scheduling concerns. You can
12 anticipate that we will be in session on Friday, but
13 the Court has a prior matter, so Friday -- am I
14 mis-speaking, counsel?
15 MS. SCOTTO: Your Honor, I thought --
16 THE COURT: Come to the side.
20 gentlemen. This is a perfect example of my senior
21 moments, and they're coming too often and too close
22 between. I don't know what it is. It's called life.
23 So Monday we're not here, Tuesday morning
24 also there's another item that needs to be addressed,
25 so we will not be here Tuesday morning or Wednesday

755
bd Proceedings
1 morning, because Wednesday morning will be for the
2 Court as if Monday morning. Since we're not in
3 session on Monday morning, all of the matters that I
4 had that are unrelated to this case will be held
5 Wednesday morning. I know you're just really excited
6 about all this. I could see this in your faces, but
7 Monday morning will happen Wednesday morning, so
8 Monday it's Memorial Day, we observe Memorial Day, we
9 will not be in session at all. The court will be
10 closed Monday, so if you guys knock on the door and no
11 one answers, that's why. So Wednesday morning will
12 take the place of Monday morning. There is something
13 else scheduled for Tuesday morning. We will not be in
14 session. So we will be in session Tuesday afternoon,
15 Wednesday afternoon, and I guess if I'm being psychic,
16 and I know what the winning lotto numbers are, I'll
17 let you know later.
18 We should have this case to you, hopefully
19 if everything works out the way as planned, and again,
20 I'm a mere mortal, there's nothing up my sleeves to
21 tell me otherwise. We should have this case to you if
22 everything works out by Thursday, and I'm giving you
23 this information because I want to apprise you of our
24 scheduling so that it conforms with your respective
25 needs of your employers and for your own personal

756
bd Proceedings
1 needs.
2 All right, ladies and gentlemen. I know
3 I've told you that I anticipated this case would be
4 done in two weeks, but because of all of the legal
5 issues that have come up that the Court and counsel
6 need to engage in, which do not affect you, we've had
7 to take those legal issues in. Because you are the
8 best Bronx jurors that we ever have had, I know you
9 appreciate how those legal issues come up and we need
10 to address them, so again, I want to thank you
11 profusely for your patience, for your indulgence and
12 for the good humor that you've had throughout the
13 entire trial. Thank you so very much.
14 Again, I'm sure you understand that
15 sometimes I endeavor to make it shorter, but sometimes
16 it needs to be a little longer. So long as you
17 understand what the schedule is. That's why I'm
18 apprising you of that schedule. So again, tomorrow
19 being Wednesday, we anticipate a full day tomorrow, we
20 anticipate a full day Thursday, pretty much a full day
21 Friday. I have another engagement Friday after 4:30
22 or thereabouts, so I'll let you know and I'll be
23 conscious of the fact that Friday is getaway day for
24 most people, that being the day before Memorial Day
25 weekend, which some of you may be enjoying full tilt

757
bd Proceedings
1 or full blown or whatever you want to refer to it.
2 Some of you may have cut it short by at least one day.
3 But that is our prospective schedule, ladies and
4 gentlemen.
5 All right. So that being said, I'm going
6 to wish each and every one of you --
7 THE JUROR: Tomorrow?
8 THE COURT: We are here tomorrow.
9 THE JUROR: What time?
10 THE COURT: I'm telling you now. You're
11 getting wet before it rains, just as I asked you not
12 to. Since we have projected a full day tomorrow, once
13 again, I'm going to ask you to be here by 9:30
14 tomorrow morning. I understand that 9:30 sometimes
15 comes out to be a little bit different, but we will
16 all strive to be here on time, legal issues being what
17 they are, but we anticipate having a full day
18 tomorrow.
19 All right, ladies and gentlemen? Thank you
20 so much. That being said, please do not discuss the
21 case amongst yourselves or with anyone else, don't
22 discuss it with anyone else, if anyone attempts to
23 speak with you or anyone talks to you about the case
24 bring it to my immediate attention. Don't speak with
25 any of the parties, attorneys or witnesses, and

758
bd Proceedings
1 obviously, don't go to the area in question, and
2 obviously, all of you will have a beautiful evening.
3 Get a good night's rest. As I said, don't kiss anyone
4 with the stomach virus because that's going around.
5 There are only two alternates, so we can't spare
6 anyone. Have a beautiful evening. We'll see you
7 tomorrow morning bright and early by 9:30. Don't
8 forget the super sized cup of coffee, as I'm sure that
9 you have not forgotten, and we will see you tomorrow
10 morning. Everyone have a good night.
12 courtroom.)
13 (Trial adjourned to Wednesday, May 26,
14 2004.)
15
16
17
18
19
20
21
22
23
24
25
759
bd P. Visser - Defendant - Cross (Mr. Durst) cont'd

2 - - - - - - - - - - - - - - - - - - - - - - - - - - -X
CIRRO RODRIGUEZ,
3 Plaintiff,
Index No.
4 -against- 16482/95
6 Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - -X
3rd Party Plaintiff,
8
-against
9
FERRARA FOODS & CONFECTIONS, INC.
10 Third Party Defendant.
-----------------------------------------------------
11 May 26, 2004
12 B E F O R E:
HONORABLE NORMA RUIZ,
13 Justice and a jury
14 (Appearances same as previously noted.)
15
16 * * *
17 (Two books were marked as Plaintiff's
18 Exhibits 10 and 11 for identification.)
19 (The witness, Philip Visser, resumed the
20 stand.)
21 THE COURT: Mr. Durst, had you finished
22 your cross?
23 MR. DURST: No.

25 rise.
760
2 courtroom.)
4 gentlemen.
6 THE COURT: Have a seat, everyone. All
7 right. Without any further delay, Mr. Durst.
9 CONTINUED CROSS-EXAMINATION
10 BY MR. DURST:
11 Q. Good morning, Mr. Visser.
12 A. Good morning, Mr. Durst.
13 Q. Did you have an opportunity to speak with
14 Ms. Cotter concerning your testimony yesterday?
15 A. No. I talked about the fact that I had to
16 change my airline ticket, and unfortunately, it cost $340
17 more.
18 Q. Did you speak to her at all about anything
19 other than the fact that you had to change your airline
20 ticket?
21 A. I talked about the car service and the fact
22 that we would continue and --
23 Q. Did you talk to her about what you were -- what
24 your testimony was?
25 A. No.
761
1 Q. Did you talk to her about what your testimony
2 would be here today?
3 A. No.
4 Q. Did you do any further research into -- like
5 did you read any of the depositions last night?
6 A. What I did last night is I looked at my
7 standards, and I made a mistake yesterday. I said that I
8 did not review ANSI standards. I did.
9 Q. You did. Do you have those with you?
10 A. I do.
11 Q. You do. You want to pull those out?
12 A. Sure. I had so many standards, I forgot some
13 of them were ANSI's. I have an ANSI standard from 1971
14 and '77.
15 Q. May I see that, sir?
16 MR. DURST: Now, your Honor, I would
17 object to any testimony with regard to these since
18 they were --
19 MS. SCOTTO: Your Honor, I think this
20 should be at side bar.
21 MR. DURST: I withdraw the objection. I
22 won't even mention it.
23 MS. SCOTTO: And they were exchanged.
24 MS. COTTER: Your Honor, could we have a
25 side bar?
762
1 THE COURT: Let's proceed.
2 Q. All right, sir. Now, you're familiar with
3 these standards, correct, the ones --
4 A. Basically, yes.
5 Q. And you relied on these in part in coming to an
6 opinion on this case?
7 A. They were part of my total investigation, yes.
8 Q. Now, is it your testimony that the product when
9 sold complied with this standard?
10 A. The product was sold, complied with the
11 standard that is in 1929 standard, that your expert
12 brought into place, and it conforms to the standards
13 today.
14 Q. Okay. Now, sir, doesn't this ANSI standard
15 require that the mixer be equipped with a safety device
16 which prevents --
18 MS. COTTER: Objection. He's reading from
19 a document.
21 MR. DURST: I'm not reading.
22 Q. -- prevents the agitators -- the agitators are
23 the blades, right?
24 A. That's right.
25 Q. From being started when the bowl -- that's the

763
1 gate -- is more than one fifth open?
3 Q. That does require that, right?
4 A. And the machine complied with that.
5 Q. How is it that when the plaintiff was able to
6 operate the bowl, operate the agitators with no safety
7 gate at all that the machine complied with that standard?
8 A. That standard says that when you start tilting
9 the bowl, the agitators have to stop. The safety switches
10 which were cannibalized from the machine did that.
11 Q. Sir, let me ask you, you say that -- I'm going
12 to get back to this. You referred to the 1929 standard,
13 okay, and you say that there -- that there were two
14 options, first option was to interlock the cover,
15 interlock the blades so they can't turn unless the cover's
16 in place, correct? That's the first option?
17 A. No, I didn't say that. It says to interlock
18 the cover, period. It said nothing about the blades.
19 MR. DURST: Your Honor, I offer
20 Plaintiff's --
21 THE WITNESS: Excuse me. I'm sorry.
22 Because it would do that, yes, it would do that
23 anyway.
24 THE COURT: I'm sorry. Excuse me. What --

764
1 THE COURT: Let's have the last question
2 back.
4 THE COURT: I'm sorry. Let's have the last
5 question and answer.
6 (The requested portion was read by the
7 stenographer.)
8 THE WITNESS: But may I correct that? It
9 would in effect do that. It would -- it would stop
10 the blades from turning.
11 Q. In other words, if that cover is at all open,
12 those blades can't turn, right?
13 A. That's right. That's the interlock.
14 Q. That is a requirement under this 1929 standard?
15 A. That is a -- one of the options.
16 Q. It's one of the options, okay. Now, the second
17 option under the 1929 standard, that would say that you
18 have an automatic cutoff when the bowl's in the tilted
19 position, right?
20 A. When the bowl starts to tilt.
21 Q. Okay. When it starts to tilt?
22 A. As soon as you start the tilting mechanism,
23 which is a separate motor with a separate switch, you push
24 a switch, this bowl starts tilting at that same moment the
25 arm leaves the switch, and it will stop the rotation of

765
1 the paddles.
2 Q. Doesn't that provision, that second option
3 refer to, say that if you have that automatic power shut
4 off so that the blades won't turn when it's in the tilted
5 position that you must also then, if you choose to take
6 that option, have a stationary cover that closes the bowl
7 when it's in the mixing position? Doesn't that say that?
8 And I'll hand this to you to refresh your recollection.
9 A. Yes, and it did have that.
10 Q. Did this machine have a stationary cover?
11 A. A cover that was hinged.
12 Q. Sir, that hinge means you can move it, right?
13 A. Of course.
14 Q. It's not stationary, is it?
15 A. No.
16 Q. No, it's not stationary. Now, sir, you're
17 saying that this safety gate is the cover you're referring
18 to?
20 Q. But this safety gate is not stationary, it
21 moves, it comes off, it's not stationary, is it?
22 A. It is stationary while it's in the up position
23 when it's mixing, and as soon as you start tilting, it has
24 to move because you have to take the dough out.
25 Q. That's right. That's why that standard

766
1 requires a stationary -- I'm going to show you, sir, a
2 stationary cover. A stationary one is one that doesn't
3 move, the bowl moves, its cover is, is always on top like
4 the roof of a house?
5 MS. COTTER: Your Honor, I'm going to
6 object to him testifying.
8 MR. DURST: Your Honor, I'd like to mark
9 this photograph as Plaintiff's Exhibit 12 for
10 identification.
11 (A photograph was marked as People's
12 Exhibit 12 for identification.)
13 THE COURT OFFICER: Plaintiff's 12 for ID
14 so marked.
15 Q. I'm going to show you what we've marked
16 Plaintiff's Exhibit 12 for identification. You recognize
17 that as being a dough mixing machine, don't you?
18 A. Not quite yet. I have to look at it. I don't
19 know which way is up and down right now. If this is a
20 dough mixing machine, it's a vertical machine.
21 Q. Does it have a cover on the top there,
22 stationary cover on top?
23 A. Would you point out what --
24 Q. Sure, I would be happy to. See right here,
25 this little roof, that's a cover, isn't it, on the top,

767
1 that, that stationary cover, one that can't be removed?
2 A. This is part of the, the complete enclosure of
3 the machine.
4 Q. Correct. Correct. Right?
5 A. This is a completely different type of machine.
6 Q. So when the dough -- when the mixer is moved to
7 the up position, it moves like under the roof, so there's
8 a cover on top of it forever. You can't remove that
9 cover?
10 A. That -- on this machine it's to keep stuff from
11 falling in, yes.
12 Q. So that would be a stationary cover, one that
13 stays there, stationary?
14 A. This one?
15 MS. COTTER: Your Honor, I'm objecting
16 to -- the witness said it was a different type of
17 machine.
18 THE COURT: Excuse me. I'll allow the
19 question. Let's hear that question. Let's hear the
20 question.
22 Q. That is a stationary machine, one, a cover, one
23 that stays in place at all times, right?
24 A. This is part of the enclosure of the machine.
25 Q. Right.
768
1 A. I wouldn't call it a cover. I would call it an
2 enclosure.
3 Q. A permanent enclosure, a cover --
4 MR. DURST: I'm sorry, your Honor. I'll
5 make sure I don't do that again.
6 THE COURT: Did we get a response from the
7 witness on that? Excuse me. Just wait one moment,
8 please. Would you respond to that question again?
9 THE WITNESS: It's, it's a completely
10 different machine, as I said. It is enclosed all the
11 way and it is not a cover that moves. If we wanted to
12 could call it a cover, I would call it an enclosure,
13 and the machine is a completely different type of
14 machine.
15 Q. It's not a dough mixer?
16 A. It's a dough mixer, but there are many types of
17 dough mixers.
18 Q. It's a bread dough mixer, isn't it?
19 A. It's a dough mixer.
20 Q. All right. Now, does this cover here, this
21 cover doesn't stay in place, it's not stationary, is it,
22 you can move it?
23 THE COURT: All right. What are you
24 referring to, for the record?
25 MR. DURST: I'm referring to Defendant's

769
1 Exhibit C, the photograph.
2 Q. That cover doesn't stay there at all times, it
3 can be moved, right?
4 A. That cover is part of the bucket and it -- it's
5 hinged on the bucket, and as it comes down, yes, it can be
6 lifted because that way you can get the dough out.
7 Q. So this is what you would call a movable cover,
8 right, not a stationary cover?
9 A. It's a movable cover, yes.
10 Q. And the standard requires a stationary cover
11 specifically, does it not?
12 A. Let me review the standard. It says that a
13 cover shall be available to close the bowl when the mixer
14 is in position and that's what this does.
15 Q. Now, sir, referring to -- we talked about
16 375-152C2A, which requires that the gate be interlocked,
17 right, totally? Now we're referring to B.
18 THE COURT: Just -- you have to wait for a
19 response. If you're asking a question, you have to
20 wait for a response.
21 A. Yes. And that is not this machine.
22 Q. Okay. B, though, if you look at B, that
23 requires a substantial stationary cover, am I correct, or
24 not?
25 A. When you read on, it says shall also be

770
1 provided, which will close the bowl when it's in the
2 mixing position.
3 Q. Right, exactly. A stationary cover which
4 closes the bowl automatically when it's in the mixing
5 position, right?
6 A. If you look at the ANSI specs and everything
7 else, it doesn't talk about that.
8 Q. Oh, so you think -- okay, we'll get to the ANSI
9 specs. Now let's turn then to the 1949 standard. By the
10 way, you did not review that before your lawyer provided
11 it to you about a week ago, right?
12 A. Which standard?
13 Q. The 1949 Standard Model Code Of Safety
14 Regulations For Industrial Establishments?
15 A. That's right. That's the one that you
16 supplied.
17 Q. Okay. Now, in that one there's no option B, is
18 there, there's just one option for the way that these
19 machines have to be designed and that's with an, an
20 interlocked cover which will prevent access to the
21 rotating blades, and I'm looking, by the way, at number 12
22 here on page 66.
23 A. Which, where?
24 Q. Page 66, item 12, referring to horizontal
25 tilting dough mixers, which is what this is, right?

771
1 THE COURT: Which is what what is? He's
2 got -- he's got Plaintiff's 12 before him. What is
3 this that you're referring to?
4 MR. DURST: This is the --
5 THE COURT: The subject machine or number
6 12 that he has before him?
7 MR. DURST: Let's talk about number --
8 we'll just stick with -- you're right, your Honor.
9 I've asked two questions. Let me withdraw the second
10 one and we'll stick with just what this standard says,
11 okay?
12 Q. You had a chance to review it, number 12 there?
13 A. I read number 12.
14 Q. Now, this is a horizontal type dough mixer
15 which is cleared by rotating blades while the, while the
16 bowl's in the tilted position, right?
17 A. No, it's not.
18 Q. Oh, it's not?
19 A. This says here -- this is -- this standard
20 applies to horizontal tilting type dough mixers that are
21 cleared by rotating the blades while the bowl is in the
22 tilted or unloading position.
23 Q. Exactly --
24 A. This machine, the blades do not rotate when
25 it's in the tilting position.

772
1 THE COURT: Which machine are you
2 referring to, sir?
3 THE WITNESS: The machine that's in
4 question in this case.
5 Q. Now, sir, did you get a chance to ever -- you
6 called actually Margot Tonnaer and spoke to her, didn't
7 you?
8 A. I didn't speak to anybody by that name.
9 Q. Did you speak to anyone from the Tonnaer
10 company? Did you make a telephone call to someone from
11 the Tonnaer company in Holland and speak to them?
12 A. No.
13 Q. You never did?
14 A. No.
15 Q. Okay. So you never even tried to talk to the
16 person who, of the family whose father in-law's company
17 made the machine, you never tried to talk to her at all
18 about this machine?
20 Q. Now, would it be -- assume for me that
21 Mrs. Tonnaer testified in this court that the -- you would
22 need arms like this to try to remove the dough manually,
23 and that, therefore, the only way to remove the dough when
24 this machine is tilted is by rotating the blades backwards
25 and pushing the dough out. Now, assume for me she

773
1 testified to that.
2 A. All right.
3 Q. Would that mean to you that the family who has
4 been making that, the lady who knows this specific machine
5 and whose family's been making this type of machine for a
6 hundred years based on testimony --
9 THE COURT: It's for the jury to decide.
10 Overruled.
11 Q. -- said that this type of machine was in fact
12 a dough mixer that was cleared by rotating the blades
13 while the bowl was in the tilted position. Now, if she
14 said that and they made the machine -- would you, would
15 you assume for me that she said that?
16 A. I assume that she said it, but she didn't say
17 that the blades kept rotating as the bucket was tilted.
18 Q. She didn't --
19 A. What -- let me finish my answer, okay?
20 Q. Okay.
21 A. What she probably said is that the safety
22 switches were arranged in such a way that when the bucket
23 was in the completely tilted position that the operator
24 could jog the paddles in reverse.
25 Q. Okay. So that would still be clearing the

774
1 dough mixer by rotating the blades, wouldn't it?
2 A. Yes.
3 Q. Whether you're jogging or leaving it on, it's
4 still clearing it by rotating the blades?
5 A. There's a big difference.
6 Q. I mean is that still --
7 MS. COTTER: Your Honor, could you
8 instruct him --
9 THE COURT: Mr. Durst, please, let's just
10 wait for the witness to finish.
11 MR. DURST: I'm sorry, your Honor.
12 A. There's a big difference because this way the
13 bucket is tilted all the way and you have a jog switch,
14 and then if you look at all the other standards that have
15 been coming in since then, it is allowed for the operator
16 to either use two hands or one hand on the switch while
17 he's doing that.
18 Q. Now, is this -- we're going to get to the other
19 standards, okay? We will, I promise you. I want to focus
20 on this one first. Okay? The 1949 standard for
21 industrial establishments promulgated by the International
22 Labor Office.
23 Now, assume for me that this dough mixer is
24 cleared, that you do clear the dough by rotating the
25 blades, whether you do it with a jog button or whether you

775
1 do it with an arm button.
2 A. There's a big difference.
3 Q. And assume for me that the plaintiff testified
4 that that was exactly the way you did it, you cleared the
5 dough by and it would just rotate and it would push the
6 dough out into a container and you didn't have to do it
7 manually, and assume for me that Mrs. Tonnaer said exactly
8 the same thing, you clear it by pushing the dough out into
9 a container, you don't even have to do it manually, you
10 don't even have to have your hands near there.
11 Now, if those facts are true that that is how
12 you clear the dough, would this not then be a horizontal
13 tilting type dough mixer which is cleared by rotating the
14 blades if those facts are true?
15 A. According to this standard?
16 Q. No, sir. Just answer that question. Wouldn't
17 this be a horizontal tilting type dough mixer that's
18 cleared by rotating the blades while the bowl is in the
19 tilted position?
20 MS. COTTER: Objection. He's asking the
21 witness to --
23 MS. COTTER: -- to base it on testimony he
24 didn't hear or read.
25 THE COURT: Overruled. It's a

776
1 hypothetical. Go ahead.
2 A. I have said that yes, you could do that if you
3 have a switch which you put one finger on and have to keep
4 it on there.
5 Q. Sir, you're avoiding the question.
6 A. I'm not avoiding the question.
9 THE COURT: Mr. Durst, that is his
10 response. Next question. He said if you put on a
11 switch. Is that the response?
12 Q. Now, doesn't that --
14 THE COURT: Mr. Visser, that was your
15 response?
16 THE WITNESS: My response is that as long
17 as you have the rotate, the paddles will only rotate
18 as long as you keep the finger on the button. As soon
19 as you move it, it stops.
20 Q. Now, that's still -- I'm asking you if this
21 standard applies, and that is what I'm trying to get you
22 to agree or disagree with.
23 A. This is --
24 Q. If this standard does not apply, then we're
25 going to have to bring in the standard and let the jury

777
1 determine whether this thing applies --
2 A. Of course.
5 THE WITNESS: First of all, sir, this is
6 not a standard.
7 MS. SCOTTO: Your Honor, there's an
8 objection.
9 THE COURT: Yes. Mr. Durst, just ask a
10 question. All right?
11 Q. Sir, do you agree or disagree that this model
12 code provision number 12 does apply or does not apply?
13 A. This is a model code which is just that. It is
14 an -- it was suggested. It has not been approved by
15 anybody at this point.
16 THE COURT: That's not the question.
17 Please answer the question put to you, sir.
18 A. This piece of paper says that, yes.
19 Q. Okay. Now, under this model code, this piece
20 of paper, it requires that there be interlocked covers
21 which will prevent access to the rotating blades while the
22 bowl is, while the blades are rotating, doesn't it require
23 that?
24 MS. SCOTTO: Objection to the --

778
2 Q. I mean I'm not saying that all codes do, but
3 this one does, doesn't it?
4 A. But, sir, if the cover is interlocked when the
5 blades are turning and the bowl is in the vertical
6 position, you can't get the dough out.
7 Q. Aah, and that's why -- that's why it permits an
8 opening, the ANSI standard permits an opening of one fifth
9 of the diameter of the space of the bowl, one fifth only,
10 correct?
11 A. To -- yes, but that's to add stuff.
12 Q. That's all the ANSI requirement, all the ANSI
13 code permits, one fifth can be uncovered, so that's where
14 the dough comes out, right? The rest, rest of the bowl is
15 completely covered by that gate which can't be, can't be
16 lifted, right?
17 A. No, sir.
18 Q. No, sir?
19 MR. DURST: Your Honor, I will offer in
20 evidence --
22 MR. DURST: Yes, sir. I mean yes, your
23 Honor.
24 THE COURT: Next question, all right?
25 MR. DURST: Okay. Your Honor, I would like

779
1 to offer the mixer provisions of the American Safety
2 Standard Code, which Mr. Visser has provided us with
3 as Plaintiff's Exhibit 13 at this time, both for --
4 THE COURT: Side bar, please. Actually
5 we're going to go in the robing room and we'll be
6 right back.
9 presence of the witness and jury:)
10 THE COURT: Just one second. Mr. Durst,
11 you don't seem to understand you need to not speak at
12 the same time that the witness is speaking.
13 MR. DURST: Yes, your Honor. I'm so sorry.
14 I really am. Don't mean to do that.
15 THE COURT: What do you have there?
16 MR. DURST: Here we have this 1947 American
17 Standard Safety Code For Bakery Equipment. It is
18 an -- and it is the standard which --
19 MS. COTTER: You just got this from the
20 witness.
21 MR. DURST: Yes, which requires all mixers
22 under provision 6.1.5 with power and manual dumping
23 arrangements shall be equipped with safety devices
24 which shall, A, engage both hands of the operator
25 while the bowl is opened more than one fifth of its

780
1 total opening, secondly, in addition, prevent the
2 agitator from being started while the bowl is more
3 than one fifth open without engaging both hands of the
4 operator, in addition, permit the operator -- well,
5 the third part is not as important. It's the A and B
6 are two different provisions which require that this
7 bowl not be opened more than one fifth while the
8 agitators are in motion under power, and this witness
9 has said that this provision was complied with, and I
10 think a reading of it by the jury would show that it
11 is in fact not complied with and that impeach the
12 credibility of this witness.
13 MS. COTTER: Your Honor, it appears to be a
14 document which counsel just got from the witness. It
15 is not part of any allegations contained in the
16 complaint, the interrogatories, responses or anything
17 received thus far in the case, including the last
18 minute documents we were faxed just a few days ago by
19 plaintiff's counsel.
20 To the extent counsel wants to refer to
21 whatever my witness reviewed and impeach him by asking
22 him questions on it, I have no objection to it, but to
23 the extent he wants to put this document that he just
24 got from the witness that is not part of his own
25 pleadings, I would, I would vehemently object to it

781
1 going into evidence.
2 MS. SCOTTO: Your Honor, yesterday it was
3 plaintiff's expert who testified about this document
4 and I objected for the reason that it was never
5 provided by plaintiff's counsel.
6 THE COURT: That was -- you know, both of
7 you are making an objection which I have ruled upon
8 before. To the extent that these documents may or may
9 not have been turned over, I cured that defect by
10 allowing you to have access to everything.
11 MS. SCOTTO: But your Honor, he didn't
12 exchange. When you told him to fax it, he didn't fax
13 that.
14 THE COURT: But this is your expert who's
15 bringing it in, so you're on notice with regard to
16 what your expert is testifying about and what he
17 relied upon.
18 MS. SCOTTO: This expert, this expert did
19 not testify about that document.
20 THE COURT: He just asked him a question
21 about it and he said that he reviewed certain
22 documents with regard to standards.
23 MS. COTTER: He can testify --
24 THE COURT: Is that the ANSI standard?
25 MR. DURST: This is the American Standard

782
1 Safety Code For Bakery Equipment sponsored by the
2 American Society Of Bakery Engineers, approved 1947.
3 MS. COTTER: Your Honor, I can see how he
4 can question the witness on this document, but handing
5 the document into evidence for the jurors to dwell on
6 it as if the expert's back there with them...
7 THE COURT: Yes. And -- and --
8 MS. COTTER: The witness isn't the writer
9 of the document.
10 THE COURT: That's not the question that's
11 before this witness. It's with regards to the
12 specific mechanisms of the machine at issue and
13 whether they complied with the standards, the various
14 standards in the industry. That's what he's here to
15 testify about, what are the standards in the industry.
16 All right? So I will allow it this time for that to
17 be submitted into evidence for the purpose of
18 impeachment.
19 MS. SCOTTO: Your Honor, I just want to
20 note my objection.
21 MS. COTTER: The jury won't be allowed to
22 view the document.
23 THE COURT: If it's in evidence, they can
24 look at anything that's in evidence. All right?
25 Let's go.
783
1 MS. COTTER: And to the extent it doesn't
2 impeach the witness --
3 THE COURT: It's for them to decide whether
4 it does or not. All right? Let's go.
6 the presence of all counsel, the witness, and jury:)
7 THE COURT: The objection is overruled.
8 That will be received in evidence as number 13.
9 MR. DURST: And your Honor, I'm only
10 offering the provision six, mixers, horizontal dough
11 mixers and its sub-parts.
12 THE COURT: And which parts are those, sir?
13 Let' -- give me the particular parts at issue here.
14 Section six?
15 MR. DURST: It's section six.
16 THE COURT: Come up.
19 THE COURT: Ladies and gentlemen, that
20 document, likewise, needs to have redactions made, so
21 you will not have that published at this time.
22 MR. DURST: Okay, sir.
23 May I proceed, your Honor?
25 Q. Sir, that, that safety standard that you're

784
1 referring to was one that was passed by the American
2 Society Of Bakery Engineers?
3 A. Is the one -- is this the one that I gave you?
4 Q. Yes. Is that correct, back in 1947 --
5 A. I -- I don't recall. I have to read it.
6 MR. DURST: Okay.
7 May I approach, your Honor? Your Honor, we
8 have not marked this yet. Should we mark it now?
9 THE COURT: Let's hold off on that for the
10 moment, all right?
11 MR. DURST: Okay.
12 Q. This was passed in 1947 and it was called the
13 American Standard Safety Code For Bakery Equipment,
14 correct?
15 A. Yes.
16 Q. Now, doesn't that require that all moving parts
17 be completely enclosed in 6.1.1?
18 A. All belts, chains, gears, pulleys, sprockets,
19 clutches, and other moving parts should be enclosed.
20 These are transmission parts.
21 Q. Okay. Would you agree that a, that the blades
22 here are moving parts, other moving parts?
23 A. They're moving parts, but they're not
24 considered on that.
25 Q. You don't think so?

785
2 Q. Well, it says "and other moving parts," doesn't
3 it?
4 A. That's what it says, yes.
5 Q. It specifies some things like belts and chains
6 and gears and pulleys, sprockets and clutches, and then it
7 says "and other moving parts," right?
8 A. It says that.
9 Q. And that includes anything else that moves,
10 they just specify some things, but they said "and other
11 moving parts," right?
12 A. Well, usually they specifically go to the
13 working parts of the machine separately. By that, I mean
14 what the machine really does.
15 Q. So what they really meant to do is include any
16 other moving parts?
17 THE COURT: You've got the answer. Next
18 question, please.
20 Q. Now, this also, this standard also requires,
21 does it not, that all drive elements --
22 A. Where are you?
23 Q. By the way, would a drive element include the
24 blades?
25 A. No.
786
1 MS. COTTER: Your Honor, I'd ask him to
2 say what section he's referring to.
3 MR. DURST: 6.1.2.
4 Q. That would not -- a blade would not be a drive
5 element?
6 A. That's a drive element that drives the blade.
7 Q. Isn't this what is being driven, the blades?
8 A. That is the driven part.
9 Q. Okay. But that makes it -- it's an element of
10 the, of the whole drive mechanism, isn't it? It's one of
11 the parts of the drive mechanism, that is the blades are
12 the parts driven, right?
13 A. Of course they're being driven, and we're --
14 Q. Well, of course, I agree, so at, this 6.1.2
15 requires that all drive elements be enclosed so as to
16 prevent injury to operators or maintenance personnel
17 performing their normal duties, right?
18 A. Yes, sir. They're talking about the gears and
19 sprockets, etcetera, on the outside. We're not talking
20 yet about the blades of the mixer --
21 Q. Well --
22 A. -- because that's covered separately here.
23 Q. You don't consider that part of the drive
24 mechanism?
25 A. That's right.
787
1 Q. Even though it's the major thing being driven?
2 A. The mixer blades are covered under the specific
3 sections.
4 MS. SCOTTO: Just one second, please.
5 Sorry.
6 Q. Okay. Now, 6.1.3 requires that there be a --
7 well, I'll skip over that, see if we can get right to
8 the -- 6.1.5, sir, doesn't that require that all mixers
9 with power and manual dumping arrangements -- a dumping
10 arrangement would be how you would get the dough out of
11 the, of the bowl, right? That would be a dumping
12 arrangement?
13 A. That's right.
14 Q. And this did have a power, either the blades or
15 manual, somebody pulling, a dumping arrangement, right?
16 A. This had a dumping mechanism.
17 Q. Shall be equipped with safety devices which
18 shall engage both hands of the operator while the bowl is
19 opened more than one fifth of its total opening while the
20 agitator is in motion, right?
21 A. These, these particular standards, which was a
22 preliminary draft, says so.
23 Q. Okay. Now, clearly the plaintiff was, was able
24 to, to -- I mean, this machine would run while the gate
25 was completely off, right, fully run while the gate was
788
1 off?
2 A. Did this machine -- yes, because all, all the
3 safety switches removed --
4 Q. Right.
5 A. -- did that, allowed to do that.
6 Q. Now, in addition to that, it requires that all
7 mixers of that type prevent the agitator from being
8 started, that is prevent the blades from turning?
9 A. Where are we reading?
10 Q. B, 615B.
11 A. Okay.
12 Q. Prevent the agitator, the blades from being
13 started at all while the bowl is more than one fifth
14 opened, unless both hands of the operator are engaged,
15 right?
16 A. This is a preliminary standard that says that.
17 THE COURT: Is that what it says, sir?
19 THE COURT: Thank you. Next question.
20 Q. And there's no question but that the -- this
21 machine was being -- well, you could operate this machine
22 without both hands being engaged, you could turn the, the
23 blades, couldn't you, without both hands being held on
24 something?
25 A. This machine, as manufactured, in the dumping

789
1 position, when it's the vertical, allowed you to use one
2 hand, which the next standard will allow you to do.
3 Q. Sir, these switches here, these are the on off
4 switches, right?
5 A. Yes.
6 Q. Okay.
7 A. At the present time.
8 Q. Mrs. Tonnaer -- I want you to assume for me
9 that Mrs. Tonnaer testified that these buttons are the on
10 off switches on the machine as sold.
11 A. Okay.
12 Q. All right? Now, with these buttons you push
13 one button to turn, make the turns, make the blades turn?
14 A. As long as the machine is in the upward
15 position.
16 Q. Oh, that's not what she -- I want you to assume
17 that that's not what she said. You put -- and that
18 certainly -- I want you to assume also that is not what
19 Mr. Rodriguez said. I want you to assume also that he
20 said that they said you push this button and the blades
21 turn, you don't have to hold it.
22 A. That's true, the way the machine was
23 cannibalized of all the safety switches.
24 Q. Well, this -- I want you so assume Mrs. Tonnaer
25 said this switch was in position at the time they sold it.
790
1 A. But the bowl had to be in an, in the upward
2 position.
3 Q. I'm just wondering how you know that.
4 A. Because that's what the standard that
5 eventually evolved says.
6 Q. That's what the standard required, no question,
7 right?
8 A. And that's what the switches would have done.
9 Q. What makes you say -- you see, I don't
10 understand. These are the switches that Mrs. Tonnaer said
11 that would turn the machine on and off.
12 A. That is true.
13 Q. This is it. Now, then, they also --
14 Mrs. Rodriguez, Mr. Rodriguez testified that there is a
15 little lever that you can turn and that makes the button
16 go up, I mean the bowl go up. Okay? Now, when it's in
17 the up position, you can push the button and it just turns
18 right, it turns 15, 20, 30 minutes while the dough mixes,
19 right?
20 A. When it's in the up position, yes.
21 Q. You don't hold -- you --
22 A. No. In the up position, no.
23 Q. Now, this machine clearly -- by the way, is
24 there any reason for this grate not to be on the bowl, not
25 to be over the top when it's in the mixing position, the

791
1 up position? Any reason that this cover should -- any
2 reason at all that this cover should not be in place at
3 all times when it's in that position?
4 A. Well, it is in position when it's in the up
5 position.
6 Q. There is no reason not to have it in position,
7 right?
8 THE COURT: All right. That's a double
9 negative.
10 A. At the time of the accident --
11 THE COURT: Just one second, sir. Let's
12 rephrase the question.
13 Q. Can you tell us any reason that that safety
14 gate should not always be in position when the bowl is in
15 the mixing or up position?
16 A. No. It should be in position.
17 Q. Always, right?
18 A. Yes.
19 Q. So there's no reason not to have it interlocked
20 so that if you open it, boom, those blades won't turn, no
21 reason not to have that, right?
22 A. Well, there is a reason, because if you have it
23 in the vertical position, the interlock would stop it.
24 Since it's never used, never opened when it's in the up
25 position and since it's six foot up in the air, why should
792
1 you interlock it? There's no reason to interlock it.
2 Q. Well, you would interlock it so that it
3 can't -- doesn't the person come up and add ingredients
4 in?
5 A. No. They dump it in.
6 Q. They don't have -- you ever seen this done at
7 all? Have you ever seen anybody add ingredients to these
8 machines?
9 A. Sure.
10 Q. You're saying they take a big bag of flower and
11 somehow dump it in over their heads?
12 A. You stand on something.
13 Q. They stand on something, right? So they're
14 leaning right into these, into the bowl, right, and adding
15 ingredients?
16 A. No. The grate is there and they dump it on top
17 of the grate, and at that, it falls down.
18 Q. You wouldn't want to have that grate in
19 position all the time, right?
20 A. You do.
21 Q. Sure, because if it's off and somebody's
22 leaning in there and the blades are turning at that time,
23 right --
24 A. But they're not leaning in.
25 Q. They're not? Have you ever seen them do it?

793
1 A. Yes. They get up their little step stool, they
2 dump it on top of the grate, and it automatically falls
3 down in the bowl.
4 Q. So you want -- you have to have that grate in
5 position at all times, right?
6 A. Yes, you do.
7 Q. Because if you didn't have that grate in
8 position, somebody might just slip a little bit, and where
9 do they fall, right into the blades, right? That's why
10 you have a gate there, a grate?
11 A. The grate is there not to have people stick
12 their hands in there, yes.
13 Q. Right, or slip and fall or faint or get their
14 hands caught by their sleeve, get caught by the blades or
15 any many things that can happen that drag a person right
16 into the blades, right? That's why you have that safety
17 gate there?
18 A. That's why it's there, yes.
19 Q. And the reason that you interlock it is so that
20 nobody, an employer can't force a worker to work on that
21 machine, he couldn't do it because it's interlocked, the
22 employer can't even get around it to increase production
23 if the employer wants to put --

794
1 Q. If an -- the reason you have interlocks is to
2 prevent the users, the employers or whoever owns the
3 machine from opening that and having somebody work on it
4 when it's in the open position, you have it interlocked so
5 they can't do that, right?
6 A. It's the, an additional safety, but in this
7 case there's no reason to do it, because if you work on
8 the machine, you have it in a tilted position.
9 Q. But you have to do it in order to comply with
10 the 1929 standard, you have to do it, don't you?
11 A. No, you don't.
12 Q. To comply with the 1949 standard, you have to
13 do it, don't you?
14 A. The way we read it here, yes.
15 Q. Okay. To comply with the bakery code, the
16 safety code for bakeries, you have to do it, don't you?
17 A. No.
18 Q. If it's in the up position nobody's supposed to
19 be able to open that gate, it has to be interlocked,
20 doesn't it? Don't you agree, sir? I mean you'll give me
21 that, won't you?
25 A. This doesn't say that, that it has to be

795
1 interlocked, that I see.
2 MR. DURST: I have no further questions,
3 your Honor.
4 THE COURT: I'm going to give the jurors
5 five minutes. All right, ladies and gentlemen? Quick
6 five minutes to stretch and use the facilities.
7 Please don't discuss the case amongst
8 yourselves or anyone else. Do not allow anyone to
9 discuss it with you. If anyone attempts to do so,
10 bring it to my immediate attention. Please don't
11 speak to any parties, attorneys or witnesses. Five
12 minutes.
14 courtroom.)
15 (Recess.)
16 THE COURT: Have a seat, everyone.
17 MR. DURST: Your Honor, may I --
18 THE COURT: Side bar.
21 THE COURT: Let's bring the jury up.
23 rise.
25 courtroom.)
796
bd P. Visser - Defendant - Cross (Ms. Scotto)
2 gentlemen, have a seat.
3 Ms. Scotto.
5 CROSS-EXAMINATION
6 BY MS. SCOTTO:
7 Q. Good afternoon, Mr. Visser.
10 Ferrara Foods.
11 I want you to assume that the plaintiff was
12 instructed that he was never to put his hands inside the
13 mixing bowl while the blades were turning. Would that
14 constitute proper training?
15 A. Yes, if it was done properly, yes.
16 MS. SCOTTO: I have no further questions.
17 THE COURT: Redirect?
18 MS. COTTER: Yes, your Honor.
20 BY MS. COTTER:
21 Q. Mr. Visser, just to clarify, you testified that
22 at the time this machine was manufactured, there was no
23 interlock on the grate; is that right?
24 A. On the grate, that's right.
25 Q. And that's pursuant to the 1929 standard,

797
bd P. Visser - Defendant - Redirect
1 although it didn't have an interlock, it had another
2 safety feature; is that right?
3 A. It had different type of safety features, yes.
4 Q. And what was that exactly?
5 A. Those safety switches would prevent the
6 agitators from rotating as soon as you started tilting the
7 bowl.
8 Q. And those were the safety, safety switches that
9 you showed us yesterday in photographs D and E that had
10 been removed by Ferrara; is that right?
11 A. Well, those were the places where the safety
12 switches had been removed.
13 Q. Is it fair to say then, Doctor, according to
14 the 1929 standards, this machine was compliant at the time
15 it was sold to Ferrara Foods?
16 A. As far as I could see, yes.
17 Q. And it was not defective at the time it was
18 sold to Ferrara Foods?
19 A. No, it was not.
20 Q. And it had been substantially modified by
21 Ferrara Foods?
22 A. Yes.
23 Q. Now, would you agree that the things that had
24 been removed by Ferrara Foods were not easily removable?

798
1 THE COURT: And if --
2 Q. If you know.
3 THE COURT: If he knows or if he can
4 assess that.
5 A. Well, by removing those switches, you had to
6 reroute all the wires. That changed the wiring sequence,
7 so it requires an electrician who knows what he's doing to
8 do it.
9 Q. And the things that were removed by Ferrara
10 Foods, would you characterize them as key safety features
11 of this machine?
12 MR. DURST: Objection, your Honor. She's
13 just leading the witness left and right.
14 MS. COTTER: It's redirect.
15 THE COURT: You're objecting to that? All
16 right, I see.
17 MR. DURST: On her own witness, I do.
18 THE COURT: I will remember that, sir.
19 MR. DURST: I do object. On cross I don't
20 object.
21 THE COURT: I'll remember when it applies
22 to you as well, sir. All right? Okay. Sustained.
23 Q. Would you agree that the things removed by
24 Ferrara were safety features of the machine?
25 A. The things removed from the machine were safety

799
1 features. I do not know who removed them.
2 Q. And those included the switch, switches that
3 you testified about yesterday?
5 Q. And of course the safety grate?
6 A. The safety grate was removed by Ferrara. That,
7 I know that.
8 Q. Anything else?
9 A. The switches were removed at some time during
10 the life of the machine. The safety grate was removed by
11 Ferrara prior to the accident.
12 Q. Now, Mr. Visser, as to the 1949 standard that
13 you testified to a bit yesterday and today, I'm going to
14 draw your attention to provision 12 of it again on page
15 66.
16 A. Which one?
17 Q. The 1949 Geneva.
18 A. Yes, I got it.
19 Q. Now, in answering on cross-examination, you did
20 testify at one point that this type of dough mixer
21 involved in this accident would not fall into this
22 category, is that right, in your opinion?
23 A. Where are we talking about?
24 Q. Provision 12 on page 66, the 1949 standard.
25 MR. DURST: Objection. She's leading

800
1 again.
2 THE COURT: Overruled. Go ahead.
3 A. What I -- what -- reading this, what I said is
4 that the blades would not rotate if the, if it was in the
5 tilting position and that if you had an, an extra switch,
6 with one hand you could make the blades rotate.
7 Q. So in your opinion, was the machine you
8 examined that was involved in this accident in compliance
9 with this standard?
10 MS. SCOTTO: Objection. As to the time of
11 manufacturing?
12 THE COURT: I'm not quite sure.
13 MS. COTTER: At the time it was sold.
14 A. I don't know. I was not -- I'm not sure
15 what -- there were so many standards at that time, that
16 one has to pick and choose. This standard is to me is a
17 little ambiguous.
18 Q. Now, looking at this standard, which also
19 requires an interlock cover, interlocked covers over the
20 rotating blades, is it fair to say that the other type of
21 interlock, which this machine did have, the automatic shut
22 off?
23 A. That -- yes, that would take the place of that.
24 Q. Thank you.
25 Now, drawing your attention back to the 1929

801
1 standard, once again, Mr. Durst on cross-examination asked
2 you about a movable as opposed to a stationary cover; is
3 that right?
4 A. Yes.
5 Q. Do you have any definitions of movable versus
6 stationary covers with you, Mr. Visser, or are they
7 defined in the standard?
8 A. We talked about the particular machine, whether
9 the enclosure, if you will, a cover -- the movable cover,
10 obviously, you can move. A stationary cover, if you take
11 it off, it also can be moved. So it's very difficult for
12 me to give you a definition of what it is.
13 Q. And in your opinion, did the cover that was on
14 this machine comply with the 1929 standard?
15 A. The 29?
16 Q. When sold.
17 A. I don't know. I can't answer that question
18 properly because, again, this is a standard from 1929 and
19 things changed before, between that and the manufacture of
20 the machine, so I think the machine still complied to the
21 standards at the time.
22 Q. Now, finally, as to the safety code for bakery
23 equipment, which is the last thing Mr. Durst asked you
24 about --
25 A. Yes.
802
1 Q. Drawing your attention to 6.1.1.
2 A. Yes.
3 Q. Now, wouldn't you agree that this machine
4 involved in this accident did have an enclosure over the
5 blades?
6 A. 6.1.1 talks about all belts, chains, gears,
7 etcetera. It does not talk about the agitators.
8 Q. But Mr. Durst asked you if other moving parts
9 would include the agitators or blades, right?
10 A. And I tried to say that the agitators are
11 covered in other areas of this standard.
12 Q. Okay. So in your opinion, this machine was
13 adequately covered?
14 A. Yes.
15 Q. The blades were adequately covered?
16 A. Yes, the -- all the parts that were mentioned
17 were adequately covered and the agitators are covered in
18 other sections of this standard.
19 Q. And eventually once Ferrara Foods got hold of
20 the machine, those covers were removed?
21 A. The cover over the, over the bucket or troth
22 was removed.
23 Q. Now, drawing your attention to 6.1.2, when you
24 testified earlier that you did not consider the blades
25 part of the drive elements, could you explain that?

803
1 A. Again, the standard brings up this, the
2 agitators in different, in specific areas, and I really
3 don't know what other driven elements they're talking
4 about.
5 Q. So in your opinion, are the blades part of the
6 drive elements defined in or talked about in 6.1.2?
7 A. See, it talks about the agitator in other
8 sections, so I don't think it, six point, which was it,
9 two, applies to that.
10 Q. Now, take a look at 6.1.5 that you were asked
11 about earlier. Now, that applies to mixers with power and
12 manual dumping arrangements and what types of safety
13 devices they should be equipped with?
14 A. Yes.
15 Q. You testified earlier that C was complied with
16 here; is that right?
17 THE COURT: That's not what we're
18 discussing. That was not the subject. A and B.
19 Q. You were asked about A and B, and in response
20 to questions you testified that C covered, covered and
21 made the machine compliant; isn't that right?
22 A. Yes, but you see, 615 says engage both hands of
23 the operator, and then when you go to 617, it says --
24 THE COURT: No, we're not discussing that
25 one, sir. All right? 6.1.5 A and B.

804
1 THE WITNESS: Ma'am, A, this one says both
2 hands shall be occupied by the operator, but the
3 standard continues later on and changes that in this
4 same standard to one hand on the button and one hand
5 free.
6 Q. Okay. Explain that a bit more. How has the
7 standard changed?
8 A. Pardon?
9 Q. How has the standard changed?
10 A. The -- this standard, it's all in this
11 standard, they say you have either you have to have both
12 hands occupied or alternatively you can have one hand on
13 the button and the other one free.
14 Q. And by the way, Mr. Visser, what year was --
15 this bakery equipment is a 1947 version?
16 A. '47.
17 Q. And in your opinion, at the time it was sold,
18 was the machine compliant with the 6.1 provisions of this
19 document?
20 A. I think it was, yes.
21 MS. COTTER: I have nothing else. Thanks
22 very much.
23 MR. DURST: Your Honor, may I see
24 Plaintiff's Exhibit 13? I don't have a copy of it.
25 THE CLERK: Your Honor, Plaintiff's Exhibit

805
bd P. Visser - Defendant - Recross (Mr. Durst)
1 13 is being copied by another clerk at the moment.
2 MR. DURST: I understand. Okay.
3 Let me, your Honor, at this time offer in
4 evidence Plaintiff's Exhibit 11, which is, which is
5 for identification, which is regulation 92, page 66,
6 item 12 on page 66 only, which is the provision
7 which -- I offer it so that the jury can make their
8 decision as to the incredibility of the witness in
9 interpreting that provision.
13 THE COURT: That application is denied.
15 BY MR. DURST:
16 Q. Now, sir, the Society Of Bakery Engineer
17 Standard 1947 --
18 A. Yes.
19 Q. It requires, doesn't it, that when you're
20 mixing, when the agitators are moving to mix the
21 ingredients that the, the bowl be completely enclosed at
22 all times when mixing and that you only have an opening of
23 a certain size where you add the ingredients, does it not,
24 in 6.1.9?
25 A. 6.1.9.
806
bd P. Visser - Defendant - Recross (Mr. Durst)
1 MS. COTTER: 6.1.9 is the bakery equipment
2 standard.
3 MR. DURST: Yes.
4 A. Only minor openings are permitted, and the --
5 they call it minor opening, one and a half square feet.
6 Q. So that standard requires that it be fully
7 enclosed except for an opening where you can add
8 ingredients when the blades are turning, right?
9 A. Yes.
10 Q. And that if any opening greater than that is
11 made by, say, lifting the cover that the blades
12 automatically stop, right?
13 A. Yes.
14 MR. DURST: No further questions, your
15 Honor.
16 MS. SCOTTO: No questions, your Honor.
17 THE COURT: All right. Thank you very
18 much. You may step down, sir.
20 THE COURT: Can I have counsel at the side?
24 gentlemen. Lest you believe that we are not busy when
25 you're not here, counsel and the Court had engaged in

807
bd Proceedings
1 previous legal discussions with regard to the next
2 item that will be before you in evidence and they
3 stipulated to bring that item into evidence without
4 need of a foundation. So it will be brought into
5 evidence for you for your consideration.
6 Now, let me just explain, and I know it's
7 hard for you sometimes to follow the bouncing ball,
8 but we did take Dr. -- I'm sorry -- Mr. Visser out of
9 turn. He was the defendant's witness. And in order
10 to accommodate his schedule and to accommodate our
11 respective set schedules, he was taken out of turn.
12 Plaintiff is not concluded with his case in chief, but
13 we took that witness out of turn, and likewise, we are
14 taking the next part of the evidence out of turn, that
15 is the defendant's evidence which is now being taken
16 out of turn to accommodate our respective schedules.
17 All right, ladies and gentlemen? However the
18 plaintiff has not rested yet and he has not finished,
19 but we are accommodating various witnesses and the
20 schedule to take the next evidentiary matter out of
21 turn. All right.
22 As you will note, we have TV cameras in the
23 courtroom. We will be utilizing a video that was
24 previously taken and at a prior time of a defense
25 witness. I believe that the video itself will

808
bd Proceedings
1 demonstrate when that video was taken. That witness
2 cannot be here for various reasons, so we are having
3 his testimony that was taken at a prior examination
4 before trial before you during the defendant's case in
5 chief for your consideration that was also videotaped.
6 All right, everyone?
7 All right, Ms. Cotter.
8 MS. COTTER: Your Honor, we offer the
9 videotaped deposition of Miguel Rogel who is the
10 plaintiff's supervisor who was subpoenaed for a
11 deposition, and as agreed by all counsel, he is
12 unavailable because he lives in Maryland. So we had
13 to videotape a deposition of him several weeks ago.
14 THE COURT: All right. And ladies and
15 gentlemen, understand that when the Court and counsel
16 met with a view towards having this particular
17 evidence before you, we did engage in certain
18 objections and rulings on those objections, so those
19 will not be before you. Any items that I may have
20 excluded from the video will not be before you. Just
21 so everyone understands, if you see an item, the video
22 fade to black or what you might believe is an
23 interruption, that's because we have engaged in review
24 of that item and it is not going to be considered by
25 you since I have ruled on those. Okay? All right,

809
bd Proceedings
1 everyone?
2 MS. COTTER: Your Honor, it will just take
3 about five minutes to get the equipment moved where
4 it's easiest to see it.
6 MS. COTTER: Your Honor, I just move at
7 this time to move the tapes themselves into evidence.
8 THE COURT: Well approach.
11 THE COURT: All right. There's no need to
12 move the video into evidence since the evidence will
13 be the Court's viewing of the video in court as if a
14 live person were testifying. All right, everyone?
15 (The tape is played.)
16 THE COURT: Stop the video for one second.
17 Can we have counsel at side bar?
20 THE COURT: Ladies and gentlemen, just so
21 that you understand, Mr. Rogel testified through the
22 services of a Spanish interpreter who swore, solemnly
23 swore to translate the questions from English to
24 Spanish and answers from Spanish to English, so you're
25 also hearing on that video the voice of Mr. Hector

810
bd Proceedings
1 Echardo(ph), the Spanish interpreter. All right,
2 everyone? Let's proceed.
4 (The tape is stopped.)
5 THE COURT: Ladies and gentlemen, let's
6 take your luncheon recess at this time. First let's
7 move the video equipment out of the path of the jurors
8 exiting. All right, ladies and gentlemen. Again, I'm
9 going to remind you, please don't discuss the case
10 amongst yourselves, with anyone else. If anyone
11 attempts to speak with you about the case, bring it to
12 my immediate attention. Please don't speak to any
13 attorneys, parties or witnesses. Please, in exiting,
14 be very careful as you step through the well of the
15 courtroom, ladies and gentlemen. Have a good lunch
16 please. Super size that coffee since the lights are
17 going to be slightly off during the afternoon, since
18 we are going to conclude with the video. Make sure
19 you have plenty of coffee, but I'll be watching you to
20 make sure you're not falling asleep over there. All
21 right, ladies and gentlemen? Okay, have a good lunch
22 and we'll see you at 2:15, promptly at 2:15.
24 courtroom.)
25 THE COURT: 2:15 everyone.

811
bd Proceedings
1 MR. DURST: Your Honor, is that exhibit,
2 the bakery exhibit, is that in evidence? I mean did
3 we mark it and get it in?
4 MS. COTTER: No.
5 THE COURT: I'm not sure what you're
6 talking about.
7 MR. DURST: I think you went up to redact
8 it.
9 THE COURT: We'll do that later, not right
10 now.
11 MS. COTTER: Your Honor, I figured out
12 that --
13 THE COURT: 2:15.
14 MS. COTTER: If we start promptly after
15 that, we will finish it today.
16 THE COURT: There is no guaranteeing when
17 we can start. That's why I'm saying 2:15. Hopefully
18 we'll be ready at 2:15.
19 MS. COTTER: Thank you.
22 rise.
24 courtroom.)
25 THE COURT: Okay, ladies and gentlemen,

812
bd Proceedings
1 welcome back. Have a seat. Let's proceed. Let's
2 proceed where we left off.
4 THE COURT: Can we stop it for a moment,
5 please? Okay, counsel at the side.
8 (The following transpired at side bar in
9 the presence of all attorneys, outside the presence of
10 the jurors:)
11 THE COURT: All right. Just for clarity
12 sake, because I'm not sure that the photograph that
13 Mr. Rogel is pointing to in the video is clear for the
14 jurors' view, and he's essentially pointing to what
15 apparently is Plaintiff's 3 in evidence, which the
16 Court, prior to conferencing with the attorneys on
17 Friday with regard to the EBT testimony of Mr. Rogel,
18 was not clear that the photograph which is Plaintiff's
19 3 in evidence and is now currently being shown by the
20 witness in the videotape did not represent a
21 subsequent repair. It wasn't until the Court and
22 counsel conferred in the Court's chambers with the
23 video that the Court understood that there was no
24 subsequent repair.
25 So to the extent that the Court made

813
bd Proceedings
1 redactions on Plaintiff's 3 excluding from Plaintiff's
2 3 a view of the safety or the buttons, and I'm not
3 quite sure how they were denominated by the various
4 buttons, there's one set of buttons in Defendant's B,
5 the blow-up photograph of what was previously marked
6 as Defendant's B on 8/18/97, demonstrates two sets of
7 switches, the smaller box switch which clearly denotes
8 a green button and a red button above a larger switch
9 which from this photograph shows two buttons that
10 appear to be black buttons. If there are different
11 colors, I can't see this in this, this color
12 photograph, but to the extent those photographs,
13 photographs in Defendant's B are 8/18/97 demonstrates
14 the same buttons that were redacted from Plaintiff's 3
15 which is the same photograph that's being referred to
16 by Mr. Rogel in the video are, we agreed, counsel,
17 that we will prop up on the easel the blow-up, that is
18 Defendant's B, for the jurors to see what Mr. Rogel is
19 referring to in the item that had been previously
20 marked at the EBT as it doesn't --
21 MS. COTTER: Do you know if this was ever
22 marked in the EBT?
23 THE COURT: This is the one that he's
24 referring to in the EBT right now.
25 MS. COTTER: This one?

814
bd Proceedings
1 THE COURT: Right, which is apparently the
2 same photograph as this one.
3 MS. COTTER: It seems to be taken at or
4 about the same time.
5 THE COURT: The same photograph as
6 Plaintiff's 3 received in evidence with the view of
7 the buttons, i.e., switches that were redacted from
8 Plaintiff's 3. So what we'll do is, because we have
9 already agreed at our prior session on Friday that
10 Defendant's A, B and C, which were admitted as
11 Defendant's A, B and C, and for the moment let's call
12 them A, B and C, A1, B1 and C1, and which are now
13 being referred to by this particular witness and we'll
14 denominate those as A2, B2 and C3 unless we can reach
15 a different agreement with regard to how to
16 characterize these various photographs that had been
17 duplicated, but at this point I will, if it will make
18 the jurors' assessment of the photograph that's being
19 shown in the video easier for them to comprehend, we
20 can either utilize the smaller photograph of
21 Plaintiff's 3 and publish that to the jurors so they
22 can understand what the witness is referring to -- are
23 you paying attention, Mr. Durst?
24 MR. DURST: I am. I understand exactly
25 what you're doing.

815
bd Proceedings
1 THE COURT: Can we agree upon that?
2 MS. COTTER: I can agree to that, yes.
3 THE COURT: To the extent I'm not quite
4 sure because I'm looking at the monitor on the Court's
5 bench, I'm not quite sure that they can visualize what
6 is depicted in the video, so if we are in the
7 agreement --
8 MS. COTTER: I'm in agreement with that.
9 That picture is definitely taken at the same discovery
10 and inspection that the other picture --
11 THE COURT: Okay. The photograph that I
12 have here, which is an unredacted version of
13 Plaintiff's 3, is the photograph that Mr. Rogel is
14 utilizing in the video at this portion --
15 MS. COTTER: Agreed.
16 MS. SCOTTO: Agreed.
17 MR. DURST: Okay.
18 THE COURT: Ms. Scotto, is that correct?
19 MS. SCOTTO: Yes.
20 THE COURT: And if they need to see it at
21 some point, we will publish the unredacted version of
22 Plaintiff's 3 to the jury.
23 MR. DURST: Okay.
24 MS. SCOTTO: Judge, off the record.

816
bd Proceedings
2 MS. SCOTTO: Your Honor, if I may add to
3 the record, although I have agreed to this, I'd like
4 the Court to know I haven't waived my objection to the
5 photographs coming into evidence which was previously
6 discussed with your Honor.
7 THE COURT: Yes. We previously had an off
8 the record discussion with regard to the EBT testimony
9 of Mr. Rogel which is the basis of the videotape that
10 is before the jury. We did not place those objections
11 and or consents to allow various portions of that EBT
12 testimony, i.e., the videotape testimony into evidence
13 for the jury's consideration, so we did not place it
14 on that, place that on the record. We'll do so in a
15 nunc pro tunc -- so Ms. Scotto, you are not waiving,
16 you're not waiving any objections that you may have
17 had as of Friday, the 21st when we had off the record
18 discussions in chambers with regard to the EBT, which
19 is essentially the videotape testimony of this
20 witness.
22 THE COURT: All right. So what are we
23 going to do with that? We're going to prop up --
24 let's prop up Defendant's B, which is a continuation,
25 and then what we'll do is maybe what we'll do is we'll

817
bd Proceedings
1 prop up Plaintiff's 3 alongside of Defendant's B. All
2 right.
4 the presence of all counsel and the jurors:)
6 gentlemen. I just wanted you to see the photograph
7 that is being demonstrated in the video. I'm not
8 sure, because I'm looking at the monitor on the
9 Court's bench, I'm not sure if you can adequately see
10 the photograph from the monitor that is before you,
11 but what is being demonstrated in the video is the
12 photograph that we have just superimposed on the
13 blow-up that's before you that had been previously
14 marked in evidence. So the photograph that you see
15 there before you represents Plaintiff's 3 that had
16 previously been redacted, and what is to the right of
17 the redaction, as you will see in the blow-up,
18 continues the part that had previously been redacted.
19 As you will see, there are two switches with buttons.
20 Does everyone see that?
21 THE JURORS: Yes.
22 THE COURT: That is essentially the
23 photograph that Mr. Rogel is referring to in the
24 video, so that I was looking at the video as it
25 appeared on my monitor, so that you are not -- I don't

818
bd Proceedings
1 know if you're missing anything, but that is in fact a
2 photograph that he was being demonstrated or utilizing
3 in the video. We regrettably do not have a blow-up in
4 an unredacted form of that particular photograph.
5 Is that correct, counsel, we don't have a
6 blow-up of that particular photograph that he's
7 pointing to in the video?
8 MS. SCOTTO: That's correct, your Honor.
9 THE COURT: Ms. Cotter.
10 MS. COTTER: I don't have a blow-up of that
11 one.
12 THE COURT: There's none right now; is that
13 correct, Mr. Durst?
14 MR. DURST: The only one I had was the one
15 that was redacted.
16 THE COURT: So we have no blow-up
17 photograph that includes the unredacted portion,
18 correct?
20 MR. DURST: Correct.
21 THE COURT: All right. Okay, ladies and
22 gentlemen? Off the record.
23 (A discussion was held off the record.)
24 THE COURT: Can we stop the -- let's just
25 for the moment, counsel, let's remove what we

819
bd Proceedings
1 superimposed over what is now on the easel before the
2 jury, A through C. Let's remove what we superimposed
3 over that for the moment so they can see what is
4 clearly being demonstrated by this witness. All
5 right, ladies and gentlemen. Off the record.
6 (A discussion was held off the record.)
7 THE COURT: Let's just prop that up, easel
8 closer to the bench so the jurors can see, not
9 obstructing the monitor. All right, ladies and
10 gentlemen. Can everyone see that, and does that
11 obstruct your view of the monitor? Yes, no, maybe so?
12 THE JURORS: No.
13 THE COURT: So it's fine?
14 THE JURORS: Yes.
15 THE COURT: All right, let's proceed then.
16 (Tape resumed.)
17 THE COURT: Can you just go back a little
18 bit before they start referring to that, just as they
19 start referring to that? Okay?
20 (Tape resumed.)
21 THE COURT: Just one second. Ladies and
22 gentlemen, do you want -- do you need a short break?
23 Yes? All right. We'll take a quick five minutes.
24 You've been very good, ladies and gentlemen. Please
25 don't discuss the case amongst yourselves or with

820
bd Proceedings
1 anyone else. Don't let anyone discuss it with you in
2 your presence. If anyone attempts to do so, bring it
3 to my immediate attention. Don't speak with any
4 parties, attorneys or witnesses. A quick five
5 minutes. Let's move the objects in the path of their
6 safety out of the way.
8 courtroom.)
10 THE COURT: Can I have the videographer on
11 the side with counsel?
13 between the Court, counsel, and videographer.)
14 THE COURT: Ms. Cotter, are you sure you
15 want to call Dr. Posner?
16 MS. COTTER: At this point, yes.
19 courtroom.)
21 gentlemen, you don't even have to sit down. You can
22 stay right in place in the box. We were hoping that
23 we might give you a little more of the videotape, but
24 as I understand, there's at least another
25 approximately 80 to 90 minutes left of the videotape

821
bd Proceedings
1 for you to see, so we won't do that now because we're
2 not going to ask you to stay after 5:00 p.m. All
3 right, everyone?
4 So but first thing tomorrow morning we will
5 conclude with this videotape. So obviously, ladies
6 and gentlemen, I'm going to ask you all, being the
7 diligent jurors that each and every one of you are, to
8 be here as close to 9:30 as possible, weather,
9 transportation permitting. All right, everyone? So
10 we'll see you tomorrow morning at 9:30.
11 We can anticipate a full day tomorrow. You
12 know, you guys are reading my mind. You have to get
13 out of my mind, all right? But we do anticipate a
14 full day tomorrow. Friday, as the attorneys and the
15 Court are discussing, we may not have a full day with
16 you, the jurors, but assume for the moment, and this
17 is not written in stone, but assume for the moment
18 that jurors are not anticipated to be here the entire
19 day on Friday, be cognizant of the fact that the Court
20 and counsel will be here the entire day on Friday, so
21 don't make any plans yet for Friday afternoon. Let's
22 just suggest that we'll be here the entire day on
23 Friday unless I instruct you otherwise. All right,
24 everyone? Okay.
25 That being said, I have instructed you

822
bd Proceedings
1 before, and I will instruct you yet again, please
2 don't discuss the case, and I know you've had a lot of
3 testimony, a lot of evidence, please don't do what New
4 Yorkers do, try to get on the subway before the people
5 on the subway get off. All right? So please do not
6 discuss the case amongst yourselves or with anyone
7 else. Do not let anyone discuss it with you. Do not
8 attempt to go to the area in question. Do not speak
9 with any parties, attorneys or witnesses. If anyone
10 attempts to engage you or if you overhear anyone
11 discussing this particular case, please be sure to
12 bring it to my immediate attention.
13 That being said, everyone be safe getting
14 home, enjoy your evening. We'll see you tomorrow
15 morning. Please, ladies and gentlemen, as much as
16 possible, as close to 9:30 as possible. Have a good
17 night, all.
18 THE JURORS: Thank you.
19 THE COURT: Be safe. Please get home safe,
21 THE JUROR: No kissing.
22 THE COURT: That goes without saying.
24 courtroom.)
25 MS. COTTER: Your Honor, may I mention one

823
bd Proceedings
1 other thing? The court reporter obviously isn't
2 taking down the video.
3 THE COURT: Correct.
4 MS. COTTER: So, you know, for the purposes
5 of, you know, an appeal, for example, I would like to
6 just get the tapes into evidence. Obviously, if they
7 need a read back, we can use the transcript.
8 THE COURT: As I indicated to you at side
9 bar off the record, the videotape of the witness is as
10 if the witness had been testifying in person on the
11 stand, so we have the EBT of the witness, Mr. Rogel,
12 that we utilized during the course of our off the
13 record conference vis-a-vis rulings on objections in
14 advance of the videotape before the jury. So with
15 regard to the jurors' assessment of what was or was
16 not said on the record, what will control is the EBT.
17 Now, if you're saying -- with regard to
18 appellate review, we will have retained the EBT of
19 Mr. Rogel as a court exhibit. If you wish the Court
20 to annex the videotapes as court exhibits, the Court
21 will do so, but again, remember we are bound by the
22 EBT and the translation of the unofficial court
23 interpreter utilized at the video taping of
24 Mr. Rogel's EBT. So if you want us to retain the
25 videotapes themselves, we will do so as a court

824
bd Proceedings
1 exhibit.
2 MS. COTTER: Obviously if it's a court
3 exhibit, the transcript and the videotapes, it will be
4 part of a record on appeal should the case ever be
5 appealed.
6 THE COURT: The court exhibits, all court
7 exhibits will be part of the court file.
8 MS. COTTER: So I would request that they
9 be annexed if it's not --
10 THE COURT: At this point it's a little bit
11 earlier, but we have not concluded with the videotape
12 for the jurors' consideration, but the videotape, as I
13 as I indicated, the EBT, these will all be court
14 exhibits. Any and all EBTs that counsel have handed
15 up to the Court, my protocol is to retain them as
16 court exhibits irrespective of whether anyone asks me
17 to do that. So they are always my court exhibits.
18 MS. COTTER: So can we annex the tapes --
19 THE COURT: When we are concluded with
20 them.
21 Everyone, please, I'm going to ask you all
22 to file out quickly.
23 MR. DURST: Your Honor, with regard to that
24 objection, can we -- you said --
25 THE COURT: What objection?

825
bd Proceedings
1 MR. DURST: The page --
2 THE COURT: We are in recess. We'll
3 address that tomorrow morning.
4 MR. DURST: Well, the witness -- the
5 videographer --
6 THE COURT: We will address that tomorrow
7 morning when we are all back here first thing tomorrow
8 morning. You don't seem to understand. We are in
9 recess because there is no overtime for court staff
10 beyond a quarter to five. We'll take that up tomorrow
11 morning, Mr. Durst. Just note it down, all right?
12 (Trial adjourned to May 27, 2004.)
13
14
15
16
17
18
19
20
21
22
23
24
25
826
bd Proceedings

2 - - - - - - - - - - - - - - - - - - - - - - - - - - -X
CIRRO RODRIGUEZ,
3 Plaintiff,
Index No.
4 -against- 16482/95
6 Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - -X
3rd Party Plaintiff,
8
-against-
9
FERRARA FOODS & CONFECTIONS, INC.
10 Third Party Defendant.
-----------------------------------------------------X
11 May 27, 2004
12 B E F O R E:

Justice and a jury
14
15 (Appearances same as previously noted.)
16
17 * * *
18
20 outside the hearing of the jurors who are in the jury
21 room for preliminary matters. Any preliminary
22 matters?
23 MS. COTTER: Your Honor, I just wanted to
24 put on the record we are not going to call our hand

25 doctor, Dr. Posner, and Mr. Durst has agreed not to
827
bd Proceedings
1 request a missing witness charge.
3 THE COURT: All right. Anything else?
4 MR. DURST: I just want to renew my
5 objection to the hearsay statement that I called to
6 the Court's attention yesterday and ask that it be
7 redacted from the deposition testimony of Mr. Rogel.
8 THE COURT: Okay. All right. We had a --
9 no objection?
10 MS. SCOTTO: I have an objection, your
11 Honor. I would like it kept in.
12 THE COURT: All right. We had an off the
13 record conference. We perused the EBT at length for
14 quite a long period of time. That conference was not
15 placed on the record because we have yet had time to
16 place it on the record, but I made my rulings. So
17 Mr. Durst, if you didn't raise them then, the
18 videographer made all the changes that needed to be
19 made in advance of coming in of the video. You slept
20 on your opportunity. I'm not doing that at this
21 point. All right, Mr. Durst? Excuse me?
22 MR. DURST: No surprise. I'm not
23 surprised.
24 THE COURT: You're not surprised?
25 MR. DURST: No. I mean I'm not saying I'm

828
bd Proceedings
1 casting aspersions --
2 THE COURT: Surprised about what?
3 MR. DURST: I'm not surprised that is your
4 ruling because I told you I didn't object to it at the
5 first time, so I'm not surprised that that is your
6 ruling. It's a logical ruling.
7 THE COURT: Yes, Mr. Durst, I would suggest
8 that you consider what you say, what you say and in
9 the manner that you say it. All right, sir? I'm not
10 here to do your job.
13 THE COURT: Ready to proceed? All right,
14 let's bring in the jury.
17 courtroom.)
19 gentlemen.
21 THE COURT: Have a seat. Welcome back.
22 Without any further delay, let's continue with the
23 conclusion of the video.
24 (Tape played.)

829
bd Proceedings
1 gentlemen, that concludes the video. Anything further
2 with regard to any items relating to that testimony?
3 MS. COTTER: I would just move to annex a
4 copy of the videotape, tapes, to the court exhibit
5 which is the deposition transcript.
6 THE COURT: I've already explained that
7 that would be part of my court exhibits. It's not for
8 the jurors to see in evidence since we have the EBT.
9 Anything further, other evidentiary matters vis-a-vis
10 the testimony?
11 MS. SCOTTO: No, your Honor.
12 MS. COTTER: No, your Honor.
13 MR. DURST: Your Honor, I'd offer into
14 evidence the statement, prior inconsistent signed
15 statement.
17 objection.
18 THE COURT: Ladies and gentlemen, we'll
19 give you a quick five minutes. All right? Stretch,
20 use the facilities. Tell you what, we'll make it 10
21 minutes, good stretch, because you've been sitting for
22 so long. Use the facilities, stretch, etcetera.
23 Please don't discuss the case amongst
24 yourselves or with anyone else. Please don't allow
25 anyone to discuss it in your presence. If anyone

830
bd Proceedings
1 attempts to do so, bring it to my immediate attention,
2 and obviously don't speak with any parties, attorneys
3 or witnesses. Ten minutes everyone.
5 courtroom.)
6 THE COURT: I'm taking five minutes.
10 presence of the jurors:)
12 outside the jury's presence. Off the record.
15 THE COURT: With regard to the question
16 vis-a-vis evidence post viewing by the jury of the
17 videotape, anyone?
18 MR. DURST: Oh, yes, your Honor. The prior
19 inconsistent statement I would like to offer in
20 evidence as a prior inconsistent written statement
21 under CPLR 45.14 and not for the, for the truth of it
22 but for the impeachment, and the witness made many
23 inconsistent statements in his deposition, and
24 although he admitted making the statement, the Court
25 of Appeals has held in long standing cases that the

831
bd Proceedings
1 written statement may still be placed in evidence
2 under those circumstances. The foundation would be
3 that he admitted making the statement. That lays the
4 foundation for the statement.
5 MS. COTTER: And this is the Rogel
6 statement we're talking about, right? Just for the
7 record.
8 MR. DURST: The fact that he had to be --
9 the fact that he made inconsistent statements in the
10 deposition, for instance, he said at various points
11 that the gate was on and that he didn't have it taken
12 off and the fact that he then had to change his
13 statements in the deposition to conform with the prior
14 inconsistent statement affects his credibility.
16 objection to it.
17 MS. COTTER: I have no objection.
18 MS. SCOTTO: I don't believe that the
19 statement is inconsistent. I think he testified
20 consistently with his written statement and also he
21 said that he was not able to read English that well at
22 the time that he signed it. He did admit to that, so
23 I also have a problem with it going into evidence for
24 that reason.
25 THE COURT: All right. So you're -- let me

832
bd Proceedings
1 just get that back again. I'm sorry. You're not
2 allowing it to go in because he admitted the
3 inconsistency? Is that what you're saying?
4 MS. SCOTTO: Yes, he admitted that he made
5 errors and he corrected himself. He used the
6 statement to refresh his recollection and he said that
7 his statement was correct, and also he said he didn't
8 read English that well at the time he signed it.
9 THE COURT: Okay. And that's the basis of
10 your objection to the introduction of that statement
11 into evidence?
12 MS. SCOTTO: Yes.
13 THE COURT: Okay. And Ms. Cotter, you have
14 no objection?
15 MS. COTTER: No objection to it. In fact I
16 would agree with Mr. Durst to the extent there were
17 some inconsistencies where he wasn't exactly sure and
18 he had to often refer to the statement and rely in
19 whole on the statement.
20 THE COURT: So are you joining Mr. Durst's
21 application to receive that document in evidence?
22 MS. COTTER: Yes.
23 THE COURT: All right. To the extent that
24 Ms. Cotter's joining Mr. Durst in admitting that into
25 evidence, I will allow it to come into evidence over

833
bd Proceedings
1 Ms. Scotto's, your objection.
2 Frankly, whether or not he had any
3 difficulty in understanding the statement as written
4 at the time that it was written and reviewed by him, I
5 don't remember the date that the statement was taken,
6 but at that time reviewed by him and then signed by
7 him, I think the jury did, by reviewing his demeanor
8 in the video and his statements with regard to his
9 proficiency in English back then and now, that is for
10 the jury to determine. So that goes to the weight of
11 the evidence vis-a-vis that particular statement and
12 his proficiency with the English language.
13 MS. SCOTTO: Your Honor, I would ask if
14 it's going to be admitted into evidence that it be
15 redacted with respect to items that were not
16 inconsistent.
17 THE COURT: To the extent that there may be
18 other matters contained therein, and frankly in
19 reviewing that statement, there were quite a few
20 admissions contained in that statement, so if
21 Ms. Cotter is joining in the application to admit that
22 into evidence, there are admissions contained within
23 that particular document that will not be redacted.
24 So that application is denied. All right? Okay.
25 MS. SCOTTO: So, your Honor, can

834
bd Proceedings
1 plaintiff's attorney read from that statement if it's
2 in evidence?
3 THE COURT: It's in evidence, yes. Any
4 admissions that are contained therein, inconsistent
5 statements, yes. That will come in. Nothing will be
6 redacted unless there is an evidentiary basis to have
7 it redacted. All right?
8 Now, let me just find out, who else do we
9 have tomorrow in the morning?
10 MS. COTTER: Tomorrow we have just someone
11 from my office sitting in the jury box reading
12 Terrence Saachi's transcript with me.
13 THE COURT: How long do we anticipate that
14 being?
15 MS. COTTER: I think we'll be done with
16 that in 40 minutes.
17 THE COURT: Because juror number one had a
18 doctor's appointment, an eye doctor's appointment
19 which was scheduled, it would have been at
20 one o'clock. I don't know where that appointment was,
21 if it was in Manhattan, in the Bronx, but he
22 rescheduled it. Do we anticipate anything in the
23 afternoon then in terms of a live witness or EBT
24 readings?
25 MS. COTTER: No. I think we talked about

835
bd Proceedings
1 maybe like we have to go through the Rogel rulings and
2 legal issue type of things, so we could use them early
3 and then deal with it, deal with anything, and
4 exhibits, which are in, which are out.
5 THE COURT: My question is will we -- let
6 me find out if he can reschedule or get back because I
7 would hate for him to feel that he rescheduled and he
8 could have made the appointment. All right. So --
9 and assuming that we get started at 10 o'clock
10 tomorrow morning, 10:15, 10:30, 40 minutes, by 11:30,
11 12 o'clock we should be done.
12 MS. COTTER: Right. And I have an
13 investigator to throw on the stand for 10, not even 10
14 minutes before the lawyer comes in just to establish
15 unavailability, so the whole thing should take an
16 hour.
17 THE COURT: All right. We can get started.
20 THE COURT: We're going to take 20 minutes,
21 25 minutes of the next witness. Okay?
22 (A document was marked as People's Exhibit
23 14 for identification.)

836
bd A. Greenberg - Defendant - Direct
1 courtroom.)
3 gentlemen, have a seat. Again, ladies and gentlemen,
4 we took Mr. Rogel's videotaped testimony out of turn,
5 as I explained to you yesterday, and again, we are
6 taking another witness out of turn. This is a defense
7 witness. All right, Ms. Cotter.
8 MS. COTTER: Thank you, Judge. We call
9 Arthur Greenberg.
10 A R T H U R G R E E N B E R G, called on behalf of the
11 Defendant, having been duly sworn, took the witness
12 stand and testified as follows:
13 THE CLERK: Please be seated, sir. State
15 THE WITNESS: Arthur Greenberg.
16 THE CLERK: And the last name is spelled
17 G-R-E-E-N-B-E-R-G; is that correct?
18 THE WITNESS: Correct.
19 THE COURT: Your address, please.
20 THE WITNESS: My home address?
21 THE CLERK: Business address.
22 THE WITNESS: Oh, business, 825 East 141st
23 Street, Bronx, New York 10454.
25 THE COURT: You may inquire.

837
3 BY MS. COTTER:
4 Q. Good afternoon, Mr. Greenberg.
5 A. Hi.
6 Q. Where do you presently work?
7 A. At National Equipment Corporation.
8 Q. And what is your position with National
9 Equipment Corporation?
10 A. I'm an executive vice-president.
11 Q. And who else holds positions with the company?
12 A. Who else?
13 Q. Primary positions, who is the president and --
14 A. Well, there's no president. I'm as high as you
15 get.
16 Q. And --
17 THE COURT: All right, Mr. Greenberg. I'm
18 sorry. Good afternoon.
20 THE COURT: Mr. Greenberg, I'm going to ask
21 you to speak a little bit louder.
23 THE COURT: A little louder please and a
24 little slower.
25 THE WITNESS: I will.

838
1 Q. Is National Equipment related to any other
2 companies such as Union Standard?
3 A. Yeah, Union Standard's a trade name of National
5 Q. And was that trade name always in place?
6 A. Yes.
7 Q. And how long has National Equipment been in
8 business?
9 A. Since 1912.
10 Q. And what type of business is it? What exactly
11 does National Equipment do?
12 A. We, we buy and sell used machinery and all the
13 things that go along with that. We have -- we buy
14 machines, buy companies, and resell the equipment.
15 Q. And as executive vice-president, what do you do
16 for National Equipment?
17 A. Well, I, I have sales, sales that I take care
18 of, and I also handle administrative details.
19 Q. So from day to day presently what do you do?
20 A. Well, I'm, I'm selling machinery, buying
21 machinery and handling whatever, you know, is necessary,
22 you know, as far as company decisions are concerned.
23 Q. How long have you been executive
24 vice-president?
25 A. Probably about 35 years.

839
1 Q. And before becoming executive vice-president,
2 what other positions with the company did you hold?
3 A. I started, I started working in the factory
4 back in 1958, and after that I sort of became, got into
5 the engineering department and eventually in sales and
6 then as an executive.
7 Q. What is your educational background?
8 A. I have a bachelor's degree in engineering from
9 Yale University and a --
10 THE COURT: What university, sir? I
11 didn't hear that.
12 A. Yale University. And an -- and a master's in
13 engineering from Columbia University.
14 Q. And other than using your engineering degree
15 with National Equipment, have you worked anywhere else?
16 A. No, only for National Equipment.
17 Q. When you say National Equipment buys and sells
18 machinery, what types of machinery?
19 A. Well, we are basically in the food industry and
20 we sell processing machinery and packaging equipment.
21 Q. And have you always dealt with that type of
22 machinery since, since you started working there in 1958?
23 A. Yes.
24 Q. And prior to the time you started working
25 there, did National always deal with those types of

840
1 machines?
2 A. Yes.
3 Q. Could you give me some examples of each of
4 those categories of machines?
5 A. Well, we sell -- when I say processing
6 equipment for the food industry, it could be cooking
7 equipment, mixing equipment, forming equipment, packaging
8 equipment, and also we, we're involved heavily in the
9 pharmaceutical industry. We sell equipment to mix and
10 prepare pharmaceuticals, package them.
11 Q. What type of equipment is used in packaging?
12 A. Filling machines, tablet making machines for
13 the pharmaceutical industry.
14 Q. You also mentioned that National refurbishes
15 equipment?
16 A. Yes, we do.
17 Q. How long has the company been doing that?
18 A. As long as I can remember.
19 Q. What does that mean?
20 A. Well, I mean I started with the company in '58
21 and they were doing it long before that. The company has
22 been in business since 1912 and I believe they've been
23 refurbishing machinery ever since they started.
24 Q. And what does it mean to refurbish?
25 A. Well, it could mean different things. It

841
1 depends on how the machine is sold. In other words we, we
2 buy machines, we put them in our, in our warehouses as
3 stock in one instance, and then when we sell the machines,
4 we, we do -- whatever the customer tells us they want to
5 do, we do, completely rebuild the machine, we can just
6 check it, make sure it's complete, we can run it,
7 different, different ways of doing it.
8 Q. Now, has the business of National Equipment
9 changed much since the 50s to date?
10 A. We used to build new machinery also.
11 Q. At what point?
12 A. Well, they were building it when I started with
13 the company. Probably since the early 40s they were
14 building new machinery.
15 Q. And then how did it change after the 40s?
16 A. Well, it gradually tapered off. We started
17 building less and less machinery because the, the
18 technology from Europe was far beyond what we were able to
19 do and we just kind of tapered it off and stopped building
20 machinery, just stayed with the used machinery.
21 Q. Now, with respect to the food industry
22 equipment you mentioned, are there many bakery equipment
23 manufacturers in Europe and in the United States?
24 A. Hundreds probably.
25 Q. Hundreds in which?
842
1 A. Well, in the world there must be hundreds. In
2 the United States, maybe there are a hundred also.
3 Q. And how many machinery manufacturers does
4 National Equipment deal with now?
5 A. You got to repeat that. I don't understand
6 what you're asking.
7 Q. How many machinery manufacturers does National
8 Equipment deal with presently?
9 A. You mean buying machines from them?
10 Q. Yes.
11 A. Right now, none.
12 Q. Okay. And when was the last time they did
13 that?
14 A. The last time, the last time we bought new
15 machines for customers was probably back in the -- between
16 1960, 1975, in that area.
17 Q. And how many manufacturers did national deal
18 with then?
19 A. At the peak we, we dealt with about five
20 companies.
21 Q. And how many -- wait. Strike that.
22 You said that was in the 60s?
23 A. It varied. I think we started, we started
24 buying machines in the 60s, I should say, and we were
25 dealing with -- we were dealing with certain companies

843
1 longer than -- probably to the 80s.
2 Q. So after the 60s did the amount of
3 manufacturers National dealt with change in the 70s?
4 A. No. It was about the same and then it tapered
5 off and then in the 80s we stopped buying machines from
6 suppliers.
7 Q. And in the 80s when that changed, when you
8 stopped buying machines from suppliers, what did the
9 business continue doing?
10 A. It just continued to buy and sell used
11 machinery. We always did that.
12 Q. So as of 1980, you never bought new machines?
13 A. No.
14 Q. Now, in the 50s, 60s or 70s did you ever deal
15 with the European, Dutch, more specifically a Dutch
16 company called Machinefabriek Tonnaer?
17 A. We actually started dealing with them in the
18 early 70s.
19 Q. And when you say you started dealing with them
20 in the early 70s, with who from Machinefabriek Tonnaer did
21 you deal with?
22 A. Who did I deal with? Mr. Tonnaer.
23 Q. What was his full name?
24 A. John Tonnaer.
25 Q. Do you know if he's still alive?

844
1 A. I don't think he is, no.
2 Q. And when you dealt with Mr. Tonnaer starting in
3 the 1970s, did you deal with anyone else on his behalf,
4 anyone else from the Machinefabriek Tonnaer Company?
5 A. No, only John Tonnaer.
6 Q. Now, what type types of machinery did you deal
7 with Mr. Tonnaer with respect to?
8 A. Mixing machines.
9 Q. And could you tell me any knowledge you have of
10 Mr. Tonnaer's company when you dealt with him?
11 A. Repeat that.
12 Q. What type of company, what type --
13 A. It was a very small company, it was a very
14 small company. It had a little factory in this town
15 called Torn in Holland and he built machines.
16 Q. And you dealt with him from the 70s until when?
17 A. I guess he went out of business in the middle
18 70s, I believe, and then we didn't, we didn't, couldn't
19 buy machines from him anymore.
20 Q. Did you ever deal with them from the late 1950s
21 to 1970?
22 A. No.
23 Q. Now, did National Equipment sell Machinefabriek
24 Tonnaer machines in the 70s?
25 A. Yes, we did.
845
1 Q. Prior to the 70s did you ever sell them?
2 A. No.
3 Q. Do you know what types of machines you sold in
4 the 70s?
5 A. Yeah. They were, they were mixing machines.
6 Q. Now, did National Equipment sell dough mixing
7 machines specifically?
8 A. Dough mixing machines.
9 Q. Which had been Machinefabriek Tonnaer mixers?
10 A. Well, the machines we bought, I mean they could
11 have been used for dough machines, but they weren't used
12 as dough -- when you say dough, means, to me means bread
13 mixing machines, and there's all kinds of these machines
14 will do a lot of mixing beside, beside what I call bread
15 dough.
16 Q. What type of -- I'm just going to ask you to
17 wait. The court reporter can only take down one voice at
18 a time.
19 What other things could these mixers be used to
20 make?
21 A. They're used in the chemical industry, they're
22 used in the pharmaceutical industry, they're used in the
23 confectionery industry. There's many uses for them.
24 Q. Now, when you say you sold Machinefabriek
25 Tonnaer mixers in the 70s, did you sell them after the
846
1 70s?
2 A. Well, I think, I think we had some, we still
3 had used machines that we bought. I mean you could
4 probably still buy Tonnaer used machines on the, on the
5 market somewhere.
6 Q. Okay. And did there come a time that you
7 stopped selling Tonnaer mixers?
8 A. Not really, no, because we had them, we had
9 them in our stock, so if we had them in our stock we sold
10 them.
11 Q. Now, from the time you started selling any
12 Tonnaer mixers up until today, were you aware of any other
13 US companies which sold Machinefabriek Tonnaer mixers?
14 A. Back in the 70s there were two that were also
15 selling them.
16 Q. Do you recall those names?
17 A. Yeah. There was one, one company called Pack
18 and Process Machinery.
19 Q. And what was the other one?
20 A. And the other one was G. Shefman and Son.
21 Q. And thereafter did you know of any other
22 sellers in particular?
23 A. No.
24 Q. Did Tonnaer also sell the machines to
25 individuals?
847
1 A. I'm sure he did.
2 THE COURT: Sure or you know, sir? What
3 is the answer?
4 THE WITNESS: Pardon?
5 THE COURT: Are you sure or you know?
6 THE WITNESS: No, I'm -- I don't know, but
7 I'm sure he did.
8 THE COURT: I don't want you to be sure,
9 sir. We're only asking you what you know, all right,
10 just what you know, sir.
11 Q. That's with respect to individual sales?
12 A. Right.
13 Q. Now, do you know if the two companies you just
14 mentioned continue to sell dough mixing machines made by
15 Machinefabriek Tonnaer?
16 A. I don't know.
17 Q. Do you know when they first began selling
18 Machinefabriek Tonnaer mixers?
19 A. They were selling them at the same time we
20 were -- you know, we're talking new machines that were
21 purchased from Tonnaer. I mean you would sell them to
22 anybody.
23 Q. And did you ever meet a woman by the name of
24 Margot Tonnaer?
25 A. No.
848
1 Q. Okay. If I were to tell you that she testified
2 that she met you at a fair once, do you have any
3 recollection of that?
4 A. It's possible, it's very possible. She might
5 be referring to a show they have in Germany every three
6 years. There's tons of people walk around the show and
7 say hello. It's possible.
8 Q. Did you ever -- do you ever remember meeting
9 any of Mr. Tonnaer's relatives when you dealt with them?
10 A. No.
11 Q. And when you dealt with them, how did you deal
12 with them? Was it the phone, did you go to Holland in
13 person, or something else?
14 A. I think the first time I dealt with them I was
15 in Holland. He took me to his factory, showed me the
16 machines that he was building, and I might have been there
17 once or twice after that.
18 Q. Do you recall the last date you -- strike that.
19 Do you recall what the date was that you last dealt with
20 Mr. Tonnaer?
21 A. It had to be in the mid 70s. I can't, I can't
22 tell you the exact date.
23 Q. Now, do you remember what the Tonnaer dough
24 mixers were like or the mixers that could be used for
25 anything?
849
1 A. Yes, yes, I do.
2 Q. Could you explain it a little bit, what they
3 were like?
4 A. I mean they were, they were made to -- there
5 were two basic ones that we bought. One was a double arm
6 mixer, which, it's what they call a sigma blade, sigma
7 blade mixers, and we primarily, I bought, I think, two of
8 them from him, and so they were, they went to a chewing
9 gum company.
10 Q. Do you remember when you bought those two from
11 him?
12 A. You know, in that period, in that time period
13 between, you know, beginning of the 70s, middle of the 70s
14 when he stopped making the machines.
15 Q. And you said you sold them to a chewing gum
16 company?
17 A. I'm sorry?
18 Q. You said you sold them to a chewing gum
19 company?
20 A. Yes, I sold them to a chewing gum company.
21 Q. What was the name of the chewing gum company?
22 A. Reed Candy Company.
23 Q. And I'm going to show you what has been
24 previously marked as Defendant's A, B and C and ask you to
25 take a look at those photos, Mr. Greenberg.

850
1 A. Okay.
2 Q. Do you recall after this case began attending
3 an inspection of the machine allegedly involved in an
4 accident which occurred on March 14, 1995?
5 A. Yes, I do.
6 Q. Do you recognize what is in the photographs
7 marked A, B, and C, Defendant's A, B and C?
8 A. Yes, that is the machine.
9 Q. And when you attended that inspection, do you
10 recall if anyone else was there?
11 A. Yeah, there was. I think there was an engineer
12 that, that was hired by the, our attorneys to take a look
13 at the machine, Mr. Durst was there, the, the plaintiff
14 was there, and there was an interpreter with him, a woman
15 who was interpreting for him.
16 Q. You -- now, did you have an opportunity to take
17 a good look at the machine when you were there at the
18 inspection?
19 A. Yes, I did.
20 Q. And was there anything about the machine's
21 appearance that led you to believe that National Equipment
22 ever refurbished it or sold it?
23 A. Well, I know we never sold it as a new machine
24 for sure because we never bought a machine like that.
25 This is a -- this machine was the only -- I told you the

851
1 only double arm mixers that we bought were for chewing gum
2 and they were much bigger and much heavier duty. I mean
3 it's obvious to me it wasn't one of those.
4 Q. When you say double arm mixer, that's a double
5 arm mixer?
6 A. This is a double arm.
7 Q. What are you looking at to categorize it as a
8 double arm?
9 A. Well, you have two shafts in here and --
10 Q. You can hold up the --
11 A. Oh, I'm sorry. They have two shafts.
12 Q. If you could hold it up a little higher,
13 please?
14 A. Okay. They have two shafts. You could see
15 that there's two sets of bearings here where the, where
16 the shafts are driven, and the chewing gum machine, this
17 machine, if you want a technical explanation, this machine
18 is driven on one side of the machine. The chewing gum
19 machines are driven on both sides because they have 30 or
20 40 hours power motors on. They're very strong machines,
21 and so this machine is not, not one of those.
22 Q. How much bigger were the double arm mixers you
23 dealt with?
24 A. I can tell you this one for instance is about
25 50 gallon size. The chewing gum mixers were about a

852
1 hundred gallon, double the size.
2 Q. Now, this was at Ferrara that you saw this
3 machine, Ferrara Foods?
4 A. Yes. Yeah, it was at a, the cannoli factory.
5 Q. And how long have -- strike that.
6 Are you currently doing any sales to Ferrara
7 Foods?
8 A. Not now, no.
9 Q. When was the last time you dealt with Ferrara
10 Foods?
11 A. Oh, I think it probably was in the 80s.
12 Q. And when did you stop?
13 A. Well, I don't remember when we stopped.
14 Q. Do you remember what time in the 80s or --
15 A. I think it was -- I think it was probably
16 around '84, '85. Not that we stopped. They just weren't
17 buying any more machinery.
18 Q. And what types of machinery did Ferrara deal
19 with?
20 A. Did we sell them, you mean?
21 Q. Yes.
22 A. We sold them bakery machines, sizing machines,
23 we sold them wrapping machines for boxes.
24 Q. Now, when you were at the inspection of this
25 machine, did you have an opinion as to the condition of

853
1 it?
2 A. Well, the machine was about as poor as
3 condition as I have ever seen a machine. The -- the --
4 all of the original stuff is gone on the machine.
5 Q. If you could just hold it up --
6 A. Okay, I'm sorry.
7 Q. -- so that the jurors can see.
8 A. All of this, all of these push buttons are all
9 something that somebody else put on. This definitely was
10 not original Tonnaer equipment. I mean they're American
11 switches and stuff which weren't, didn't come from
12 Holland. They're using -- I mean the machine was in
13 terrible condition. It was filthy, the wires were all
14 loose, coming out of the motors, the -- you can see there
15 is a bracket right here with four little holes in it and
16 that thing had originally the, the switches that would
17 stop the machine when it was in the tilting stage. Also
18 all the, all the wiring here is -- I don't know, somebody
19 must have done it at night, it's all BX, which is not
20 according to code. I mean it's -- it was just a very poor
21 job. Also, when I say I don't believe, I don't, I'm sure
22 that this grate was not the original grate that Tonnaer
23 made on the machine. It had to have been changed
24 somewhere in the used machinery.
25 Q. Now, was there anything else about what this

854
1 machine didn't have on it that led you to believe that it
2 couldn't be a machine that your company refurbished?
3 A. Well, if we had actually, if we had the machine
4 refurbished, it -- you would have all the electrical
5 interlocks that are necessary. I mean you would have had,
6 for instance, a switch even if this was, even if this was
7 on the machine, this particular grate, this would, this
8 grate would have activated a microswitch that if it was
9 open, it would stop the machine. There also would be
10 switches, the minute the machine began to tilt you
11 wouldn't be able to operate the arms until the thing got
12 all the way down, and then at that point you could only
13 operate it with your finger on the button so that, so that
14 you couldn't, you couldn't hold the button and stick your
15 hands in the machine at the same time.
16 Q. Now, Mr. Greenberg, do you keep records of the
17 various machines you have sold through the years?
18 A. Yes.
19 Q. And did you do a search?
20 A. Yes, I did.
21 Q. Did you do a search after, after the case began
22 for any records regarding your purchase of any dough
23 mixers of this sort from Machinefabriek Tonnaer?
24 A. You got to repeat it. I'm not sure I
25 understand what you're asking.

855
1 Q. Did you search your records to see whether you
2 bought any dough mixers like this from Machinefabriek
3 Tonnaer?
4 A. No, we never bought this kind, this particular
5 machine or that kind of machine from Tonnaer.
6 Q. Did you make a search of your records as to --
7 THE COURT: That means you did not search
8 your records?
9 A. I did search the records, yeah.
10 Q. You did search your records?
11 A. But I also know that we never bought that
12 machine. It's not that we bought that many machines from
13 them.
14 Q. When you searched your records did you find
15 that somewhere along the way maybe you did buy a machine
16 like that from Tonnaer?
17 A. No, we never bought a machine like that from
18 Tonnaer. We have no records of it.
19 Q. And did you search your records for any
20 machinery you sold to Ferrara Foods during the late 70s?
21 A. Yes.
22 Q. And you became aware through the case that
23 Mr. Scoppa testified that he bought, he bought the machine
24 involved in the accident in 1979?

856
1 THE COURT: Sustained as to form.
2 Q. Did you make a search of records to see --
3 THE COURT: Excuse me, just, just --
5 THE COURT: You need to wait until the
6 question is asked.
8 THE COURT: The court reporter can't take
9 down two people at the same time.
11 THE COURT: Rephrase your question.
12 Q. Did you make a search with respect to any dough
13 mixers or mixers that were sold to Ferrara Foods?
14 A. Yes.
15 Q. And what was the result of your search?
16 A. Well, we have a card file that's all sold
17 machines and then we have a card file of, that shows that
18 the -- and we have -- I'm sorry. We have a card file in
19 categories, we have mixers, and in that mixer category we
20 break it down by make because, you know, we sell hundreds
21 of different types of mixers, not just Tonnaers, and so it
22 was very -- I think there were six cards in the sold file
23 showing that we bought these machines secondhand and sold
24 them to somebody.
25 Q. Now, when you say there were six machines in

857
1 the card file, was it for a certain time period?
2 A. No. It was, it was since time began. I mean
3 this, these, all of these records are just kept. We
4 don't, we don't ever throw them away.
5 Q. Okay.
6 A. So it has every Tonnaer mixer that we bought
7 secondhand.
8 Q. Okay. And there were six of them?
9 A. Yeah, I think there were six or seven. I'm not
10 sure. I have -- I have the records with me.
11 Q. Okay. Before we get to those records, are you
12 the record keeper for the company?
13 A. I don't directly do it, but I mean I make sure
14 that the records are kept properly.
15 Q. Okay. And through the years where are they
16 kept?
17 A. They're in a file cabinet in our office.
18 Q. And are they organized?
19 A. Yes.
20 Q. And you said they were organized according to
21 type of machine?
22 A. Correct, by type of machine and then by make
23 within the type.
24 Q. Okay. And of the six Tonnaer mixers that you
25 found in the card file since the time that your company
858
1 began, did you find that from looking at those cards that
2 any of those Tonnaer mixers were sold to Ferrara Foods?
3 A. No, none of them were.
4 Q. Do you have the cards with you?
5 A. Yeah, I have, I have copies of them.
6 MS. COTTER: Judge, this might be a good
7 time to break. I know you said you wanted us to just
8 go for 20 minutes.
9 THE COURT: I'm going to ask all counsel to
10 use this time to inspect the documents that
11 Mr. Greenberg has brought with him. All right?
12 All right, ladies and gentlemen, we are
13 going to take our luncheon recess at this time. I'm
14 going ask you to be back at 2:15. All right,
15 everyone? We've got -- we anticipate having a full
16 day, afternoon rather, so 2:15. Have a good lunch.
17 Don't discuss the case amongst yourselves
18 or with anyone else. Don't allow anyone to discuss it
19 with you. If anyone attempts to do so, bring it to my
20 immediate attention. Please don't speak to any of the
21 attorneys, parties or witnesses. Don't forget your
22 coffee, super-size cups. You're on your own this
23 afternoon with coffee this afternoon, ladies and
24 gentlemen. Okay? See you at 2:15.

859
1 courtroom.)
2 (Luncheon recess.)
4 THE COURT: We ready to proceed?
7 THE COURT: Let's bring the jurors out.
9 rise.
11 courtroom.)
12 THE COURT: Okay, ladies and gentlemen,
13 welcome back. Have a seat. Let's continue.
14 MS. COTTER: Thank you, Judge. I just ask
15 that the last two questions and answers be read back.
17 (The requested portion of the record was
18 read by the stenographer.)
19 CONTINUED DIRECT EXAMINATION
20 BY MS. COTTER:
21 Q. Mr. Greenberg, I'm going to ask you to take out
22 your cards or go through --
23 A. Did you give them back to me?
24 THE COURT: These are copies of the cards?
25 MS. COTTER: Yes. I'd like to mark this at

860
1 this point, Judge. I'm not going to seek to admit it.
2 THE COURT: For identification?
3 MS. COTTER: Yes.
4 THE COURT: Let's show it to the defense
5 attorney and Mr. Durst.
6 MR. DURST: I object, your Honor, to the
7 admission of them in evidence.
8 THE COURT: Side bar, please, with regard
9 to -- actually, ladies and gentlemen, we'll be right
10 back.
13 presence of the jurors and witness:)
14 THE COURT: Okay. Before the Court is an
15 eight and a half by 12 inch paper with Xeroxed copies
16 of one, two, three, four, five, six items that appear
17 to be five by seven inch items. What was your
18 objection?
19 MR. DURST: Foundation grounds, your Honor.
20 MS. COTTER: Well, your Honor, I can lay a
21 foundation for these with the witness.
22 THE COURT: Where are the originals? Is
23 that your --
25 THE COURT: All right. Where are the

861
1 originals?
2 MS. COTTER: I don't believe he brought the
3 originals with him.
4 THE COURT: Okay.
5 MS. COTTER: He can testify that he's a
6 custodian of the records, that they are --
7 THE COURT: That would be fine, but where
8 are the originals?
9 MS. COTTER: They're probably at his place
10 of business.
11 THE COURT: Yes, and --
12 MS. COTTER: He doesn't have them with him.
13 THE COURT: Okay.
14 MS. COTTER: I can ask him that, but to the
15 extent you are not going to allow me to admit them,
16 can he look at what he brought with him to refresh his
17 recollection?
18 THE COURT: If he needs these to refresh,
19 but these are not originals. I haven't heard any
20 reason why the originals are not here, so these are
21 copies. Okay?
23 the presence of all counsel, the witness and the
24 jurors:)
25 THE COURT: The objection is sustained.

862
1 MS. COTTER: Your Honor, could I show this
2 to the witness?
3 THE COURT: Mark it for identification
4 only. May I have counsel at side bar?
5 (The following transpired at side bar in
6 the presence of all counsel, outside the presence of
7 the witness and jurors:)
8 THE COURT: Did we mark something yesterday
9 as F?
10 THE CLERK: I don't have anything marked as
11 F.
12 MS. COTTER: The last two were D and E,
13 there were two photographs.
14 MS. SCOTTO: That's what I have.
15 THE COURT: So F should be the statement,
16 correct?
17 MS. COTTER: No, because that was a
18 plaintiff's --
19 MS. SCOTTO: Right, Plaintiff's 14.
20 MS. COTTER: So the last defendant, third
21 party plaintiff --
22 THE COURT: That came in as defendant's.
23 MR. DURST: We marked it as Plaintiff's
24 Exhibit 14. I offered it.
25 MS. SCOTTO: She joined, so it's his

863
1 exhibit.
2 THE COURT: All right. We have to square
3 this away because I'm off here.
4 MR. DURST: We did mark it as Plaintiff's
5 Exhibit 14, but maybe we should have marked it as a
6 defendant's exhibit.
7 THE COURT: I thought it was a defendant's
8 exhibit.
9 MR. DURST: That's understandable.
10 MS. COTTER: I don't think it matters.
11 MR. DURST: Well, I understand what the
12 Court's saying. Maybe we both offered it.
13 THE COURT: You have, the last one you have
14 as defendant's, third party plaintiff's as what?
15 THE CLERK: I have E third party plaintiff
16 as a photograph marked May 25.
17 THE COURT: So this is for identification.
18 Let's mark this Defendant's G for identification for
19 the moment and we'll work this out later on before
20 anything gets offered to the jury.
21 MS. COTTER: We'll just leave the Rogel
22 statement as F, doesn't matter.
23 MR. DURST: Yes, exactly. That sounds
24 fine.
25 THE COURT: All right. We'll work this out

864
1 because I think what we need to do, especially since
2 there's so many Defendant's A about, we're going to
3 have to clarify with regard to Defendant's A, we have
4 to subdivide that one, two and three if there's a
5 need, or in the alternative, we'll mark one of those
6 Defendant's A that Mr. Rogel referred to in the video,
7 and I have to look at my notes because now I don't
8 remember what he referred to but something that was
9 marked at the EBT.
10 MS. SCOTTO: His statement.
11 THE COURT: Also as A.
12 MS. SCOTTO: And the two photos marked as
13 A.
14 THE COURT: So we have to sit down and sort
15 that out because I don't want the jurors be confused
16 when and if they ask for any of the evidence.
17 MS. SCOTTO: Okay.
18 THE COURT: So we may need to denominate
19 the Defendant's A one, two and three, but we'll work
20 that out. So at this point from what I can gather, we
21 are up to Defendant's G for identification only. All
22 right?
24 the presence of all counsel, the witness, and the
25 jurors:)
865
2 gentlemen, because I'm confused, and I don't want you
3 to be confused with regard to the various markings,
4 especially with regard to defendant's markings, there
5 have been items that you saw in the videotape that
6 were marked beforehand. I'm attempting to be
7 consistent, so I have yet to publish numerous items
8 that have been received in evidence to you for various
9 reasons. However, counsel and the Court will probably
10 sit down and work this out outside of your hearing,
11 and I suspect it will probably be tomorrow afternoon.
12 We have other legal issues which again do not concern
13 you, so you will not need to be here possibly tomorrow
14 afternoon. We'll work out the various items that
15 should be marked in evidence and how they will be
16 marked before you receive them and before I publish
17 them to you. All right, everyone?
18 So please don't believe that we are holding
19 stuff back from you. We just need to keep track, make
20 redactions, and then publish them to you before you
21 retire for your deliberations.
22 At this point we are up to Defendant's G at
23 this point for identification. This is a copy. Let's
24 go.
25 (Photocopies of inventory cards were marked

866
1 as Defendant's Exhibit G for identification.)
2 Q. Mr. Greenberg, I show what we've marked for
3 identification as Defendant's G.
4 A. Okay.
5 Q. Getting back to the six cards you talked about
6 that you found in your file concerning mixers --
7 A. Yes.
8 Q. -- do you happen to have the original cards
9 with you?
10 A. No.
11 Q. And does Defendant's G -- do you recognize
12 Defendant's G?
13 A. Do I recognize the cards?
14 Q. What is it?
15 A. Oh, these are the inventory cards.
16 Q. Is that a photocopy of the inventory cards?
17 A. Yes.
18 Q. Does it fairly and accurately depict the
19 original cards?
20 A. Yes.
21 Q. And are you a custodian of records for the
22 business?
23 A. Well, I, I know where they are and where
24 they're kept.
25 Q. And are they kept in the normal ordinary course

867
1 of your business?
2 THE COURT: Referring to the originals?
3 A. Yes, the originals are kept in the, in a file
4 cabinet.
5 Q. You're welcome to look at that document to
6 refresh your recollection, but please tell me generally
7 what information is contained on each card as to the
8 mixers.
9 A. Well, each, each card represents a machine that
10 we purchased, a used or secondhand machine that we
11 purchased, gives a description of the machine, the make,
12 meaning in this case it was a Tonnaer made by Tonnaer, it
13 tells who the machine was purchased from, when, and when
14 it was sold, and who it was sold to.
15 Q. And again, just to clarify, you made a search
16 for any Tonnaer mixers since your company started?
17 A. Yes.
18 Q. And looking at the first card, and you can
19 refer to them in the order you have copied them, what type
20 of mixer was that?
21 THE COURT: All right. He can only use
22 those to refresh his recollection. That's not in
23 evidence. All right? So refresh your recollection
24 with all of those before you respond to the answers.
25 All right, sir?

868
1 Q. To the extent you need to refer to the
2 document --
3 THE COURT: No, you may refresh your
4 recollection and then you may respond to the answers.
5 Q. Do you recall what the first card you found
6 referred to in terms of what type of mixer and who you
7 purchased it from?
8 A. The first card was a, was a Tonnaer mixer. It
9 was a one hundred gallon capacity chewing gum mixer and we
10 purchased it from Reed Candy Company.
11 Q. And what date did you purchase it?
12 A. April 2, 1979.
13 Q. And did you ultimately sell it?
14 A. Yes.
15 Q. When did you sell it?
16 A. May 8, 1979.
17 Q. And who did you sell it to?
18 A. It was sold to a company called Sergio. I'm
19 not sure of the last, the last --
20 THE COURT: Are you refreshing your
21 recollection? Are you reading from the card?
22 THE WITNESS: I'm reading from the card.
23 THE COURT: You may not do that, sir.
24 Q. Don't read from the card.
25 THE COURT: That is not in evidence. It's

869
1 a copy. All right?
2 THE WITNESS: I didn't memorize the cards.
3 I mean I can't --
4 THE COURT: That's why you're refreshing
5 your recollection.
6 Q. To the extent you need to, you can only use it
7 to your recollection.
8 A. Okay.
9 Q. What was the second card pertaining to, what
10 type of mixer?
11 A. Actually it was the same type of machine also
12 purchased from the same company, and it was an, also a
13 hundred gallon capacity chewing gum mixer purchased the
14 same time, but it was sold at a different time to a
15 different company.
16 Q. What does a chewing gum mixer --
17 THE COURT: Let me have that back, sir.
18 Is this item that you have -- if you need to refresh
19 your recollection, let me know. All right?
20 Q. What exactly is a chewing gum mixer? What does
21 it look like?
22 A. It's a very -- it's a large version of --
23 similar to the machine that, that, that was at Ferrara,
24 but it's much larger, has the same type of arms but much
25 bigger.
870
1 Q. And was the second one, second card you found,
2 was that a single arm or a double arm mixer?
3 A. This was a double arm mixer, and instead of
4 having a motor driven tilting mechanism, this had a
5 hydraulically driven tilting mechanism because the machine
6 was much bigger and heavier.
7 Q. When you say bigger and heavier, how much
8 heavier would that machine have been from the machine --
9 Just let me finish each question, please,
10 before you start answering.
11 How much bigger and heavier would that, that
12 machine have been than the machine you saw at Ferrara?
13 A. I'll say about twice the size, twice as heavy.
14 Q. And do you recall what date you purchased that
15 mixer?
16 A. I have -- I would have to see the thing. I
17 don't remember.
18 Q. Would you like to use the document to refresh
20 A. Yeah.
21 Q. And what --
22 A. It was purchased in April of '79.
23 Q. And what date did you ultimately sell it?
24 A. It was, it was sold in June of '83.
25 Q. And do you recall who it was sold to?

871
1 A. No.
2 Q. Do you need --
3 A. I'd have to see it.
4 Q. Do you need the card to refresh your
5 recollection?
6 THE COURT: All right, I'm going to hand
7 you all six items. I'm going to ask you take a
8 moment, refresh your recollection with regard to
9 everything contained therein, and then hand them back
10 once you refreshed your recollection.
12 MS. COTTER: You can take your time.
13 THE COURT: With regard to everything
14 contained therein you should refresh your
15 recollection.
16 THE WITNESS: There is no way I'm going to
17 remember it in two seconds.
18 THE COURT: I'm going to ask you, sir, to
19 review everything contained therein to refresh your
20 recollection. Take a moment and do that. You didn't
21 bring the originals with you, sir?
22 THE WITNESS: No.
23 THE COURT: Then you'll refresh your
24 recollection with what you have and hand it back.
25 MS. COTTER: You can take your time.

872
2 Q. Do you recall who you sold that second mixer
3 to?
4 A. Yeah, it was Tom's Foods in 1983.
5 Q. And the remaining mixers, there were four
6 remaining?
7 A. Yes.
8 Q. Do you recall what type of mixers those were?
9 A. They were single arm mixers, meaning they only
10 had one, one mixing arm instead of two.
11 Q. Okay. And again, the machine involved in the
12 accident that you inspected, that had one or two?
13 A. Two arms.
14 Q. So the remaining four single arm mixers, do you
15 recall who you got those from? You can go through one at
16 a time, whatever's easiest for you to remember.
17 A. I remember two of them came from a candy
18 company in Germany. It was called Suchard, S-U-C-H-A-R-D.
19 The other two I don't remember.
20 Q. And do you recall who they were sold to?
21 A. I'd have to see that thing again. I don't
22 remember.
23 MS. COTTER: Your Honor, would you allow
24 the witness to refresh his recollection as to the last
25 four cards, who it was sold to?

873
1 THE COURT: What was this item, please?
2 Suchar? Could I have the last question read back to
3 the Court, please?
6 THE COURT: The two with regard to Suchard,
7 refresh your recollection as to that one item.
8 Q. And who were they ultimately sold to?
9 THE COURT: Refresh your recollection and
10 then please give that back after your recollection has
11 been refreshed.
12 A. Okay. One was -- one of them was sold to
13 Annabel Candy Company and the other two Hollywood Brands.
14 Q. And the remaining two mixers that you haven't
15 talked about yet, do you recall who they were purchased
16 from?
17 A. No.
18 Q. Do you recall who they were sold to?
19 A. No.
20 Q. Would you like to use the document to refresh
22 A. Yeah. Yes.
23 MS. COTTER: Your Honor, could he use the
24 document?
25 THE COURT: Yes. Just one second. Does

874
1 that refresh your recollection, sir?
3 Q. Do you recall who they were purchased from
4 and --
5 A. One of them was from a company called National
6 Chickle and the other was Hollywood Brands.
7 Q. And who were they ultimately sold to?
8 A. One of them went to a company in South America
9 called Pulko(ph). I don't remember the -- I don't
10 remember the rest of the name.
11 Q. And the other one?
12 A. I don't remember.
13 Q. You need to refresh your recollection as to the
14 last one?
15 A. Yes. Wait a minute. I think I remember it. I
16 think it was Annabel Candy Company.
17 Q. Now, of the six cards --
18 THE COURT: It was sold to whom?
19 THE WITNESS: Annabel Candy.
20 THE COURT: The last one?
21 THE WITNESS: Yeah.
22 Q. Of the six mixers you've just spoken about,
23 were any of those sold to Ferrara Foods?
24 A. No.
25 Q. And were any of them the same type of dough

875
bd A. Greenberg - Defense - Cross (Mr. Durst)
1 mixer depicted in Defendant's A through C which you saw in
2 an inspection?
3 A. Well, two of them were double arm, but they
4 were, they were quite different than the ones that Ferrara
5 has. As I say, they were bigger and they were larger in
6 capacity, different type of tilting mechanisms.
7 Q. What else?
8 A. And different type of drives for the arms.
9 Q. You said hydraulically powered as opposed to
10 motor powered?
11 A. Correct.
12 MS. COTTER: I have nothing more. Oh,
13 actually, just for the record, Judge, I would seek to
14 move these documents into evidence.
15 MR. DURST: Same objection, your Honor.
16 THE COURT: Objection sustained. Anyone
17 else want to use that? Cross.
20 BY MR. DURST:
21 Q. Good afternoon, sir.
23 Q. Are you telling the jury here that you remember
24 every machine that was sold by National Equipment
25 Corporation in the 50s, 60s, 70s, 80s and that machine was
876
1 never sold?
2 MS. COTTER: Objection, double question.
4 A. Want me to answer that?
5 Q. Yes, sir.
6 A. Well, I only, I have the card filing that tells
7 me. I don't remember them specifically.
8 Q. I mean it would require a really good memory,
9 wouldn't it?
10 A. It would what?
11 Q. It would require a really good memory to
12 recognize every machine that has been sold over the last
13 54 years, right?
14 A. Probably.
15 Q. In fact, you can't even remember the six
16 machines that were sold that you looked at these documents
17 and refreshed your recollection, and you're trying to tell
18 the jury what kind of machine it was and who it was sold
19 to and when it was sold, you can't even remember that
20 after refreshing your recollection, you can't even
21 remember that a minute later, can you?
22 A. So what? What does that prove?
23 THE COURT: Sir --
24 A. It just means that --
25 THE COURT: Excuse me, Mr. Greenberg.

877
1 THE WITNESS: Yes.
2 THE COURT: All right. You're here to
3 answer questions, not ask questions. All right, sir?
4 Just answer the question that is put to you, sir.
5 Q. Now, sir, who did you start in the -- who ran
6 the business when you first started there?
7 A. My father and his brothers.
8 Q. Now, your father and your brothers, when you --
9 A. And his brothers.
10 Q. And his brothers, when they, they also sold
11 machines too, didn't they?
12 A. Correct.
13 Q. We're talking about -- you started at the
14 company back in 1958, right?
15 A. Correct.
16 Q. Now, at that time you weren't a salesman,
17 right?
18 A. No.
19 Q. You worked in the -- what did you do?
20 A. From the factory.
21 Q. Now, at that time I suppose there might have
22 been machines being sold by your parents, right?
23 A. Sure.
24 Q. By your dad, by --
25 A. Yes.
878
1 Q. And you didn't know every machine that was
2 sold, did you?
3 A. No.
4 Q. You never saw all the machines that were sold,
5 did you?
6 A. No.
7 Q. And even if you did, you wouldn't remember it
8 as you're sitting here, would you, whether that machine
9 went through your factory? Would you remember that, sir?
10 Are you asking me to --
11 A. Why would I have to remember in 1958 --
12 THE COURT: All right, sir, excuse me.
13 THE WITNESS: What?
14 THE COURT: What? Excuse me. You're
15 answering the question that's put to you, sir. Do you
16 understand that?
17 THE WITNESS: He didn't ask me a question
18 yet.
19 THE COURT: Sir, you're not here to ask
20 questions. You're here to answer them. If you don't
21 understand the question, you can say so.
23 THE COURT: There's no what, there's no
24 questions by you. Do you understand that, sir?

879
1 THE COURT: Is that a yes?
2 THE WITNESS: Yes.
3 THE COURT: Next question.
4 Q. Now, you have -- do you have a pretty good
5 memory?
6 A. Yeah, I have a good memory.
7 Q. Now, didn't you tell this jury that you
8 recognized me as being there at that examination seven
9 years ago?
10 A. Well, you were there.
11 Q. I was, was I? Do you recognize anybody else
12 here that was there?
13 A. Yeah, Mr. Rodriguez was there.
14 Q. No one else?
15 A. There was a woman who was the interpreter, she
16 was there.
17 Q. Now, sir, if I were to tell you that I wasn't
18 there --
19 A. Yeah.
20 Q. -- that in fact it was this gentleman right
21 here that was there, wouldn't that kind of make you doubt
22 whether your memory is so perfect?
23 A. No.
24 Q. It doesn't? I mean if you can mistake a human
25 being, you can kind of mistake a machine too, couldn't

880
1 you, you could mis-identify a machine, couldn't you?
4 Q. Could you agree with -- could you give me that?
5 A. No.
6 Q. That can happen?
7 A. No.
8 Q. That couldn't happen, right?
9 A. No.
10 Q. Now, you have no personal knowledge whether
11 your company ever had possession of that machine, do you?
12 A. It's in our card records.
13 Q. You have, you have no personal knowledge
14 whether that machine was ever in the possession of your
15 company, do you?
16 A. No.
17 Q. So all the stuff about recognizing this
18 machine, isn't that just kind of willful recognition on
19 your part?
20 A. I didn't say I recognized the machine.
21 Q. Okay. And all you have to go by is the
22 paperwork that you looked at, right?
23 A. Right.
24 Q. You actually have no opinion, do you, as to
25 whether you ever sold that machine, you have no opinion,

881
1 do you?
2 A. Our records are good. I go by the records.
3 Q. Other than the records, you have no opinion, do
4 you?
5 MS. COTTER: Objection as to opinion.
6 A. How else can you do it? The records speak for
7 themselves.
9 Q. Okay. You're saying that your records go back
10 since the beginning of the company?
11 A. No, not the beginning of the company but
12 probably 40, 50 years.
13 Q. Uh-huh. Now, do you remember testifying at a
14 deposition?
15 A. Yes.
16 Q. And that was in 1997, right?
17 A. Okay, right.
18 Q. Do you remember --
19 MR. DURST: Your Honor, I have a --
21 MR. DURST: -- copy for your Honor.
22 THE COURT: Just one second. All right.
23 Date of reference, please, with regard to --
24 MR. DURST: Yes, your Honor, page six.
25 THE COURT: Date of reference?

882
1 MR. DURST: The deposition date was March
2 19, 1997.
3 Q. Sir, you remember testifying --
4 THE COURT: What page and what lines?
5 MR. DURST: Page six, line 15.
6 THE COURT: Fifteen through what?
7 MR. DURST: Through 18.
8 THE COURT: Give me one moment. All right,
9 go ahead.
10 Q. Do you remember having received a copy of this
11 deposition after the deposition?
12 A. Yes.
13 Q. And you read the deposition carefully, right?
14 A. Yes.
15 Q. And you made any corrections you wanted to
16 make, didn't you?
17 A. Yes.
18 Q. In fact you did make one correction on page 31,
19 line 19, right?
20 A. I don't know. If you say so. I don't have it
21 in front of me.
22 Q. All right. I do. Would you like to -- I mean
23 can you agree with me that you made one correction on page
24 31, line 19 and no other corrections, right?
25 A. Okay.
883
1 Q. And you're a Yale graduate, Columbia graduate,
2 intelligent man, correct?
3 THE COURT: Those are multiple questions.
4 Let's get an answer to each one, okay?
5 MR. DURST: Okay.
6 Q. So you understood when you were making this
7 deposition that this was really important stuff, right,
8 for this litigation, for this plaintiff?
9 A. Yes.
10 Q. So you told the truth when you made these
11 statements, right?
12 A. Yes.
13 Q. Now, did you say on page six, line 15:
14 "QUESTION: How long do you keep paperwork
15 evidencing sale of a product?
16 "ANSWER: I'd say we probably have information
17 that goes back 20, 25 years."
18 Did you say that?
19 A. If it's written in there, I said it.
20 Q. Now, that's a little different than information
21 going back 40, 45, oh, all the way back, that's a little
22 different, isn't it?
23 A. Well, the cards that I picked out were all the
24 cards we sold in -- that we have on our file.
25 Q. Well --
884
1 A. And it certainly takes in the time frame that
2 you talked about. I mean they didn't buy the machine in
3 1950 or 1940.
4 Q. Well, Mrs. Tonnaer came here from Holland --
5 A. Yeah.
6 Q. -- and she testified --
7 A. Yeah.
8 Q. -- that in fact Tonnaer had been selling
9 machines to National Equipment Corporation for a very long
10 time, certainly back through the 50s.
11 A. It's not true. They never sold in the 50s.
12 MS. COTTER: Objection. I'm not sure that
13 is the testimony, Judge.
14 Q. Now, let me --
15 THE COURT: Overruled. The jury will --
16 it's the jury's recollection of what Ms. Tonnaer's
17 testimony was.
18 Q. Did you call Mrs. Tonnaer and ask her not to
19 cooperate in this litigation?
20 A. No.
21 Q. Did you ever call her and talk to her about
22 this litigation?
23 A. I'm sorry. Say that again.
24 Q. Did you ever call her and talk to her about
25 this litigation?
885
2 A. I never talked to her, but we had
3 correspondence --
5 A. -- because she was originally a defendant in
6 this case. She said she got a notice of a lawsuit and she
7 said, what do we do.
8 THE COURT: All right, this, this --
9 THE WITNESS: He asked me a question.
10 THE COURT: Excuse me. We are striking
11 this part of the testimony, only with regard to this
12 litigation.
13 Q. Do you know of any reason that Mrs. Tonnaer
14 would come here from Holland and lie to this jury about
15 whether or not all the machines that Tonnaer sold were
16 sold to National Equipment Corporation and no one else?
17 A. Maybe, maybe that's what she thought. It's not
18 true, though.
19 Q. She has no financial interest in the
20 litigation, does she?
23 A. I don't know. Maybe she does. That I don't
24 know about. I really don't know.
25 Q. Let me ask you --

886
1 A. Maybe you paid her. I don't know.
2 Q. We do know that you have a financial interest
3 in the litigation?
6 Q. You do, don't you?
7 A. Yeah, of course I do.
8 Q. Now, when she came here and testified, she did
9 it at possible great personal expense because --
13 Q. Okay. Is it possible, sir, that you, a major
14 purchaser of machinery such as dough mixers in the United
15 States, might hold it against her if she came here and
16 testified?
17 A. I have no contact with her at all. I haven't
18 bought -- I haven't dealt with Tonnaer since 1975. I have
19 nothing to do with her at all.
20 Q. Certainly alienate you as a customer, wouldn't
21 it?
22 A. I'm not a customer. I haven't bought any
23 machines from her in 30 years, so I certainly wouldn't
24 call myself a customer.
25 Q. Do you know of any reason she would come here

887
1 and lie to this jury?
3 MS. SCOTTO: Objection, asked and answered.
4 THE COURT: Sustained. Let's move on.
5 MR. DURST: I'll move on, your Honor. I'll
6 move on.
7 Q. Now, sir, you said that if you sold a
8 reconditioned dough mixer you'd put an interlocked guard
9 on the safety grate or safety gate, right?
12 MS. COTTER: That wasn't the testimony.
13 It's beyond the scope of cross.
14 THE COURT: It's the jury's recollection of
15 what it was. Overruled.
16 A. Ask me the question again.
17 Q. If you sold a reconditioned dough mixer, your
18 company would put an interlocked guard on the safety gate,
19 right?
20 A. Yeah. That's one of the things we do, yeah.
21 Q. And the interlocks would stop that machine
22 whenever the blade -- or stop the blades whenever the gate
23 was open?
24 A. Correct.
25 Q. Right?
888
1 A. Mm-hmm.
2 Q. Now, if you sold the machine, it was not
3 reconditioned by your company, you sold it without
4 reconditioning, you would not necessarily add an
5 interlocked gate, safety gate on that machine, right?
6 A. That's true.
7 Q. And many times you would sell machines without
8 reconditioning them, right?
9 A. Sometimes we would, sometimes we wouldn't.
10 Q. Right?
11 A. Yeah.
12 Q. And you would charge extra for reconditioning
13 the machine, right?
14 A. Right.
15 Q. And if they didn't pay for that reconditioning
16 you didn't do it, you sold it to them --
17 A. No, it had nothing to do with that. If we
18 sold, if we sold it to them without reconditioning, they
19 would sign a contract saying that they bought the machine
20 in its present state, that any corrections that had to be
21 made would have to be made by them at their expense and
22 they agreed to that.
23 Q. You are -- you are a national seller of, of
24 used equipment like dough mixers, right, that's your
25 commercial --
889
1 THE COURT: All right, please. Let me not
2 repeat this because as everyone can see, the court
3 reporter is struggling. Mr. Durst, Mr. Greenberg, you
4 cannot both speak at the same time. I'm going to have
5 the court reporter read back the last question she was
6 able to take down.
9 Q. You're a commercial seller of used equipment,
10 correct?
11 A. Yes.
12 Q. And you would sell this equipment in a
13 condition which you knew did not comply with the standards
14 in the industry for safeguarding, for interlocking the
15 safety gates?
17 A. What machine?
20 Q. With regard to a safety gate on the dough
21 mixer, would you, if the machine was not reconditioned,
22 would you sell that machine to a purchaser without putting
23 a safety interlock on the gate if it was sold without
24 reconditioning it?

890
1 THE COURT: Overruled, if you understand
2 the question.
3 A. If, if the customer didn't want any
4 reconditioning and he bought it in the what we call as is
5 state, then he would take it just the way he saw it, and
6 he'd sign it in agreement, saying that he took it the way
7 he saw it, and if there are any defects in the machine
8 with regard to mechanical defects or any defect regarding
9 OSHA regulations, it would be their responsibility to fix
10 it and they sign that agreement as part of the sales
11 contract.
12 Q. That would be part of the sales contract?
13 THE COURT: All right. Mr. Durst, I'm not
14 sure that he finished. Did you finish that answer,
15 sir?
16 THE WITNESS: No, I was --
17 THE COURT: I'm going to ask you again,
18 wait until he finishes the response to ask another
19 question. Did you finish that response?
20 THE WITNESS: What was the last thing I
21 said?
22 THE COURT: All right, I'm going to ask the
23 court reporter to read back the response.

891
1 THE WITNESS: That's a complete statement.
2 MR. DURST: Just winding down here.
3 Q. By the way, when National Equipment Corporation
4 sells a machine, either new or not, one that they
5 manufactured but one that they bought from someone else,
6 either new or reconditioned, or used, they don't put a --
7 they don't put a label on it saying National Equipment
8 Corporation, do you?
9 A. No.
10 Q. Sir, would you agree now you're a degreed
11 engineer; am I correct?
12 A. Yes.
13 Q. You have a master's in mechanical engineering,
14 is it?
15 A. Yes.
16 Q. And you're familiar with the generally accepted
17 engineering practices with regard to guarding moving parts
18 in machinery like dough mixers?
19 A. Yes.
20 MS. COTTER: Objection. He's not here as
21 an expert.
22 THE COURT: That's overruled based on his
23 testimony. Go ahead.
24 MS. COTTER: It's also beyond the scope of
25 my direct.
892
1 THE COURT: Based on his testimony, that's
2 overruled. Go ahead. This is cross.
3 Q. Would you agree, sir --
4 A. Yes.
5 Q. -- that without an interlocked guard on the
6 bowl or the hopper, when that hopper's in the mixing
7 position, a machine does not comply with the American
8 Standard Safety Code for Bakery Equipment?
11 A. Want me to answer the question?
12 Q. Yes.
13 A. Yes.
14 Q. You would agree that that does not comply?
15 A. Right.
16 Q. You would agree that it would not comply with
17 the model code for safety regulations?
18 A. What code?
19 Q. Model code for safety regulations. Not
20 familiar?
23 A. No.
24 Q. How about ANSI, it wouldn't comply with ANSI,
25 would it?
893
1 A. I'm sorry?
2 Q. The American National Standard Institute, it
3 would not comply with that?
4 A. I don't know if it would or not because I don't
5 know that, but all I know is the machines should have an
6 interlock on it.
7 Q. They should?
8 A. Correct.
9 Q. All right. And would not comply with OSHA
10 either if --
11 A. No.
12 Q. If an expert came in and testified that it did
13 comply, he'd be wrong, wouldn't he?
16 THE COURT: Overruled. You may answer.
17 A. Ask the question again.
18 Q. If an expert came in here and told this jury
19 that yeah, an uninterlocked guard complies with, you know,
20 the bakery standard safety code, they would just be wrong,
21 wouldn't they?
22 A. According to OSHA it would be wrong, yeah.
23 Q. Now --
24 THE COURT: Is that with regard to OSHA or
25 his engineering?
894
1 Q. With regard to the bakery safety code?
2 A. It's got to be according to a code. I mean
3 obviously I'm using OSHA as a code.
4 Q. I mean it's an obvious violation, right?
5 A. Obvious violation?
6 Q. To an engineer?
7 A. It would be an obvious violation of OSHA, yeah.
8 Q. Now, sir, you yourself had never used one of
9 these dough mixers yourself?
10 A. I've operated them.
11 Q. You have?
12 A. Yes.
13 MR. DURST: I'd call your attention, your
14 Honor, to page 38, line 19 through line 21.
15 Q. Sir --
16 THE COURT: Give me one moment.
17 MS. COTTER: Your Honor, I would just point
18 out that he hasn't clarified --
19 THE COURT: Give me one moment, please.
20 Page 38?
21 MR. DURST: Line 19.
22 THE COURT: I'm sorry. What was the
23 objection?
24 MS. COTTER: Your Honor, I would just ask
25 Mr. Durst to clarify, is he talking about operating

895
1 the type of dough mixer involved in the accident or
2 any mixer or something else? It's a very open-ended
3 question.
4 THE COURT: Mr. Durst, with regard to the
5 line of questioning at page 38, line 19 through 21,
6 what does it refer back to?
7 MR. DURST: I'll make it refer to this
8 dough mixer.
9 THE COURT: What does the -- what does the
10 EBT refer back to?
11 MR. DURST: This machine.
12 Q. Are you familiar --
13 The question was are you familiar with the
14 appropriate method to clean dough out of the mixer?
16 A. That wasn't what you asked me.
17 MR. DURST: Okay, I'll withdraw the
18 question, your Honor. I'll start over.
19 Q. Have you ever used one of the kind of dough
20 mixers shown in that photograph?
21 A. No, I've never used it. I've never used that,
22 I've never used the machine.
23 Q. Have you used any dough mixers?
24 A. I've never used dough mixers. I mean I've
25 tested them in our factory but I've never used them.

896
1 Q. Okay. You've observed them, you've observed
2 people working on them?
3 A. Yes.
4 Q. Now, you know that when, when you've observed
5 it, they remove the dough when the machine's in the
6 vertical position only, right, or when it's tilted?
7 A. When it's tilted down.
8 Q. That's the only time you remove dough, right?
9 A. Correct.
10 Q. You never remove dough when it's in the up
11 position, right?
12 A. No.
13 Q. And when it's in the tilted position, they use
14 the blades to push the dough out, correct?
15 A. Yeah, they -- normally what they do is they
16 actually reverse the direction of the blades.
17 Q. And --
18 A. And that pushes the dough out.
19 Q. Right into a container?
20 A. Right.
21 Q. That's pretty easy, right?
22 A. I'm sorry?
24 THE COURT: Overruled. All right. Just
25 one second. We have objections, we have Mr. Durst

897
1 asking a question, and the witness answering. We have
2 only one court reporter who's trying to listen and do
3 several things at the same time. Let this be the last
4 time I ask you for the benefit of the court reporter,
5 the jury, and the record. This applies to everyone at
6 this point. Please wait until I have ruled on an
7 objection or the question is concluded or the witness
8 finishes answering the question.
9 Does everyone understand, and by everyone I
10 mean all counsel, and the witness. Does everyone
11 understand?
14 THE COURT: All right. Let me ask the
15 court reporter, what was the last thing you were
16 capable of taking down.
19 THE COURT: All right. That's the last
20 question. The response was what?
21 Q. The only one --
22 A. I would say yes, okay, it was easy.
23 Q. Okay. And you can push the last parts of the
24 dough, all the little pieces, they could get pushed out by
25 the blades, right?

898
1 A. No, not always.
2 Q. Well, okay. At some point you have to turn the
3 blades off and actually get in there with a scraper and
4 clean it out, right?
5 A. Right.
6 Q. But to remove the dough when the mixer's in the
7 up position, that's pretty difficult, isn't it?
8 MS. COTTER: Objection, your Honor. He's
9 never testified he's worked on this exact machine.
10 THE COURT: Overruled. Overruled. Go
11 ahead.
12 A. It's not only difficult. It's also very
13 dangerous.
14 Q. If the material comes up, it can start falling
15 down again, right?
16 A. It's not something you do.
17 Q. It's not something you would ever ask anyone to
18 do, would you?
19 A. No.
20 Q. You ever seen anyone have to do it that way?
21 A. I have never seen anybody do it, but I'm sure
22 it's -- I'm sure it's done.
23 Q. Would you agree, sir, that Ferrara should not
24 have required any worker --

899
1 Q. -- to remove dough with the bowl in the up
2 position?
3 THE COURT: Overruled, if you can answer
4 that question.
5 A. Was the mixing arm still running at the time?
6 Q. Certainly was.
7 A. Pardon?
8 Q. It certainly was.
9 A. If it was, absolutely not.
10 Q. You mean even if it's not, it's kind of
11 difficult, right?
12 A. It's difficult.
13 Q. In fact you've never tried it, you have no idea
14 how difficult, do you?
15 A. No, I wouldn't try it.
16 Q. You wouldn't even try it?
17 A. No.
18 Q. Blade stopped or not stopped, would you?
19 A. No.
20 Q. Of course not. Stick your hand down in those
21 blades even when it stopped would be a pretty frightening
22 thing, wouldn't it?
24 Q. You'd have to reach down in between those two Z
25 blades, that would be a frightening thing, wouldn't it?

900
2 A. It wouldn't be the right thing to do. It would
3 be like putting your hand into a garbage disposal.
4 Q. Now, you were at the examination where
5 Mr. Rodriguez was present, right?
6 A. Yes.
7 Q. And Mr. Rodriguez actually told --
9 Q. Was speaking in a way that you could understand
10 and overhear him say what happened, right?
11 THE COURT: Overruled, if you're able to
12 understand.
13 Q. Did you hear Mr. Rodriguez say what happened,
14 what he was doing at the time of the accident?
15 A. Yes.
16 Q. And you speak a little, enough Spanish to
17 understand him?
18 A. Correct.
19 Q. Now, would you tell the jury whether
20 Mr. Rodriguez said back --
22 Q. -- back in 19 --
23 THE COURT: Let me hear the question,
24 please.
25 Q. In 1996, about five months after the accident,

901
1 did he say whether he was cleaning the dough or did he say
2 he was taking the dough out?
3 THE COURT: I'm sorry. Let's have a date
4 of reference, please.
5 Q. I believe that was approximately five months
6 after the accident that you saw Mr. Rodriguez at that
7 inspection, right?
8 A. You have the date, you know. I don't remember.
9 Q. Okay, but approximately?
10 A. It was after the accident. I know that.
11 Q. Shortly after the accident?
12 THE COURT: I'm sorry. You're referring
13 him to the date of the inspection?
15 THE COURT: All right. All right. The
16 objection is overruled.
17 Q. What did you hear him say?
18 A. He said he had to climb up onto the -- I guess
19 they had a stairway or a platform that he could climb up
20 to and he could reach in and get the dough out of the
21 machine.
22 Q. And he said because the machine wouldn't tilt
23 he had to do that?
24 A. Correct. Right.

902
2 A. He said -- he did say that.
3 Q. And in the process the arms caught his hand, is
4 that what he said?
5 A. Yes.
6 Q. He didn't say he was cleaning the dough out,
7 did he?
9 THE COURT: Overruled. Based upon your
10 understanding of Spanish.
11 Q. He was taking the dough out?
12 A. It could very well be. I'm not positive of
13 that.
14 Q. Sir, if I said to you that back in 1997 at your
15 deposition you had indicated that he said --
17 Q. -- he was taking the dough out, not cleaning
18 the machine --
20 THE COURT: What are you referring to,
21 Mr. Durst?
22 MR. DURST: Your Honor, I'm referring to
23 page 33, line 25 through line 10 of page 34, and I
24 don't need to read the whole thing, just that one
25 portion.
903
1 THE COURT: All right. Go ahead.
2 Overruled.
3 Q. Was it taking out the dough?
4 THE COURT: Overruled with regard to the
5 EBT.
6 MR. DURST: Okay, your Honor.
7 Q. "QUESTION: What was it that you overheard?
8 THE COURT: Page 33, is that what you're
9 referring to?
10 MR. DURST: Yes, your Honor. Page 33, line
11 25.
12 Q. "QUESTION: What was it that you overheard him
13 say?
14 "ANSWER: He said that the machine would not
15 tilt and so he had to go and stand on a platform and reach
16 in to take out the dough because the machine wouldn't
17 tilt. There was something wrong with the tilting
18 mechanism, and I guess in the process the arms caught his
19 hand and he lost the fingers."
20 He said that at the time?
21 A. Yes.
22 Q. And does that refresh your recollection that
23 what he actually said was that he was taking out the
24 dough, not cleaning the machine?
25 A. That's correct. That's what I thought he would

904
1 say.
2 MR. DURST: Okay. Thank you very much.
3 No further questions, your Honor.
5 gentlemen. Let's take a quick five-minute recess.
6 All right? You know the drill. What's the first
7 thing? Do not discuss the case amongst yourselves or
8 with anyone else, do not speak with any of the
9 parties, attorneys or witnesses. Anyone attempts to
10 discuss it with you in your presence, bring it to my
11 immediate attention. All right, everyone? Five quick
12 moments.
14 courtroom.)
15 THE COURT: All right, everyone, five
16 minutes.
19 rise.
21 courtroom.)
23 gentlemen, have a seat. We're in the home stretch,
24 ladies and gentlemen. Okay?
25 All right. Mr. Durst, were you done?

905
bd A. Greenberg - Defense - Cross (Ms. Scotto)
1 MR. DURST: Yes, your Honor, I'm done.
2 THE COURT: All right, Ms. Scotto.
4 CROSS-EXAMINATION
5 BY MS. SCOTTO:
6 Q. Good afternoon, Mr. Greenberg.
9 Ferrara Foods. Is it the custom and practice of your
10 company to keep an index card for every machine that is
11 purchased?
12 A. Yes.
13 Q. Is it custom and practice for your company to
14 keep an index card for every machine that is sold?
15 A. It's the same card.
16 Q. There's only one card for both those things?
17 A. Right.
18 Q. And for what period of time are those cards
19 kept?
20 A. I don't ever remember throwing them out.
21 Q. And you conducted a search, and is it your
22 testimony that you found six cards concerning Tonnaer
23 mixing machines?
24 A. Yes.
25 Q. I want to ask you some questions about the

906
1 cards that you found. You had mentioned that there were
2 two machines that were purchased from a company called
3 Sucard?
4 A. Who?
5 Q. Sucard?
6 A. Suchard, yes.
7 Q. Suchard. I was close. Can you tell me when
8 those machines from Suchard were purchased, and you can
9 use those cards to refresh your recollection if it's
10 necessary.
11 A. I'd have to -- I don't remember.
12 THE COURT: You need to refresh, sir?
13 MS. SCOTTO: Your Honor, those would be the
14 cards three and four.
15 THE WITNESS: Thank you. Your question was
16 when did, when were the machines purchased?
17 Q. Purchased from that company called Suchard?
18 A. March --
19 THE COURT: Excuse me. I want you to
20 review the item that's before you, that would be
21 Defendant's G, I believe, for identification, review
22 that, refresh your recollection, hand it back and then
23 you may respond to the answer.
25 THE COURT: Okay? Thank you.

907
1 A. It was bought in March of 1984 or '83.
2 Q. Do you need to see the card again?
3 A. Yeah.
4 Q. I'm asking you about the machines that you
5 purchased from Suchard.
6 A. Right, I know.
7 MS. SCOTTO: Your Honor, may he see the
8 card again?
9 Q. What I want to know is when your company
10 purchased them.
11 A. Yeah. Right, okay. March 1980 they were
12 purchased.
13 THE COURT: March. I'm sorry. March?
14 THE WITNESS: 1980.
15 Q. And that's both of them; is that correct?
16 A. Correct.
17 Q. And you said one of them was sold to Annabel
18 Candy Company?
19 A. Yes.
20 Q. Can you tell me when that was sold? You can
21 look at the card.
22 A. Okay.
23 THE COURT: Do you need to refresh your
24 recollection, first of all?
25 THE WITNESS: Yes, I need to refresh my

908
1 recollection. Thank you. Annabel Candy.
2 A. Okay. February 1981.
3 Q. And you said one was sold to Hollywood Brands?
4 A. Yes.
5 Q. And when was that one sold to Hollywood Brands?
6 A. Also in 1981.
7 Q. And then you mentioned a machine, a Tonnaer
8 mixing machine that was purchased from National Chickle,
9 is that how you say it?
10 A. Yes.
11 Q. And when was that purchase? Do you need to
12 refresh your recollection?
13 A. I have to refresh my recollection, yes.
14 Q. And that would be on the pages with cards five
15 and six?
16 THE COURT: What was that question?
17 MS. SCOTTO: I wanted to know when that
18 machine was purchased.
19 THE COURT: With regard to National
20 Chickle?
21 MS. SCOTTO: Yes.
22 THE COURT: Do you need to refresh your
23 recollection, sir?
24 THE WITNESS: Yes. Okay.
25 Q. When was it purchased?

909
1 A. It was purchased in 1983.
2 Q. And you said that was sold to a company called
3 Pulko?
4 A. It's handwritten. I mean that's as best as I
5 can come up with. It's somewhere in South America, I
6 believe.
7 Q. And when was that Tonnaer mixing machine --
8 THE COURT: Was that a yes, sir?
9 THE WITNESS: Yes.
10 MS. SCOTTO: Your Honor, may I proceed?
11 THE COURT: Yes.
12 Q. And when was that machine sold to that company
13 Pulko?
14 A. In 1983.
15 Q. And the last machine that you mentioned, that
16 Tonnaer machine, where was that one purchased from? Do
17 you need to refresh your recollection?
18 A. Yeah, I think so. I think it was Hollywood
19 Brands, but I'm not sure. Okay.
20 Q. When was that one purchased?
21 A. It was purchased in 1984.
22 Q. And who was that one sold to?
23 A. Company called Wisconsin Cheeseman.
24 Q. And when was that one sold to that --
25 A. 1984.
910
1 Q. So when you conducted a search and you found
2 the six cards, is it your testimony that those cards show
3 that no Tonnaer mixing machine was ever sold to Ferrara?
4 A. Correct.
5 Q. And is it your testimony that National
6 Equipment never purchased a Tonnaer mixing machine like
7 the one you saw in the photographs and at the inspection?
8 A. No.
9 Q. Is that your testimony that you never purchased
10 one?
11 A. Yes, that is my testimony.
12 Q. And is it your testimony that National
13 Equipment never sold a Tonnaer double armed mixing machine
14 that you saw in the photographs and at the inspection?
15 A. No. Yes.
16 Q. Is that your testimony?
17 A. Yes.
18 Q. If the machine had been reconditioned, if a
19 particular machine had been reconditioned by National
20 Equipment, would there be a card for that piece of
21 equipment when it was sold?
22 A. Yeah, there would be a card for any machine we
23 purchase secondhand.
24 Q. So regardless of whether --
25 THE COURT: Sorry. Secondhand or new?

911
1 What was the question? What was your question, Ms. --
2 MS. SCOTTO: I was asking about
3 reconditioned machines.
4 THE COURT: Reconditioned?
5 MS. SCOTTO: But maybe I should clear that
6 up.
7 Q. If the machine was reconditioned, would there
8 be a card for that machine when it was sold?
9 A. We have a card, we have a card for every
10 machine that's sold, whether it's reconditioned or not.
11 Q. Whether it's reconditioned or new?
12 A. No, in other words, reconditioned or not
13 reconditioned.
14 Q. If a machine was purchased by National
15 Equipment and it was sold as a new piece of equipment, you
16 have a card for it?
17 A. No.
18 Q. There would be no card if it was new?
19 A. No.
20 Q. If the piece of equipment was used, would there
21 be a card?
22 A. Yes.
23 Q. And if a piece of equipment was reconditioned,
24 would there be a card?
25 A. Yes.
912
bd A. Greenberg - Defendant- Redirect
1 Q. You mentioned if the piece of equipment was
2 reconditioned and you sold it as is, there was some type
3 of a contract?
4 A. Yes.
5 Q. Does National Equipment maintain those
6 contracts?
7 A. Yes.
8 Q. And did you look through those contracts?
9 A. Yes.
10 Q. Did you find whether or not National Equipment
11 ever had possession of a Tonnaer double armed mixing
12 machine like the one you saw at the inspection and ever
13 sold it?
14 A. The way I knew that was that there was no
15 inventory card for it. So it means we didn't purchase
16 one.
17 Q. There was no inventory card for such a machine
18 and there was no contract that it was sold as is?
19 A. No.
20 MS. SCOTTO: Thank you. I have no further
21 questions.
23 BY MS. COTTER:
24 Q. Mr. Greenberg, are you confident in your record
25 keeping?
913
bd A. Greenberg - Defense - Redirect
1 A. Yes.
2 Q. Any doubt that there were records out there
3 that you didn't have an opportunity to review?
4 A. I, I went and got all the records myself. I
5 didn't delegate it to anybody else to get it for me. I
6 went and got all the records myself to make sure that I
7 got everything.
8 Q. And you never said you had an independent
9 recollection of every machine your company ever bought or
10 sold?
11 A. I couldn't possibly have, no.
12 Q. It wouldn't be reasonable to think that any of
13 us could remember all the machines you ever bought or
14 sold, would it?
15 A. No, it would not.
16 Q. Now, if this machine was sold to Ferrara in
17 1978 or 1979, at that point you weren't just a factory
18 worker, you were in the sales aspect, in the business
19 aspect of the company, weren't you?
20 A. That's right.
21 Q. And are you aware that when Margot Tonnaer came
22 into this courtroom she testified that she was basing her
23 testimony on conversations with people and she had no
24 personal knowledge?
25 A. No, I wasn't aware of that.

914
bd A. Greenberg - Defense - Redirect
1 Q. Yet if this machine was bought by Ferrara in
2 the 1970s, you had personal knowledge of sales that went
3 on at that time, right?
4 A. Yes, we did. Yes, I did.
5 Q. And are you aware that Margot Tonnaer, in
6 looking at a letter she signed and wrote, wasn't even
7 certain whether National Equipment was the one who passed
8 this machine on in the United States, she testified that
9 she wasn't --
10 THE COURT: Counsel, let's stay away from
11 any letters that she may have signed or written. All
12 right? Let's not explore that.
13 Q. Mr. Durst asked you about compliance with
14 certain standards, 1929 and 1940s. Do you have any
15 knowledge of the, of whether the machine involved in this
16 accident complied at the time it was sold or at the time
17 of the accident with any of these standards?
18 A. Well, if the machine was made in 1950, I would
19 assume it met whatever codes were there in 1950 because in
20 Europe the codes are actually more, are more stringent
21 than they are here in the United States.
22 Q. But other than seeing this machine at an
23 inspection and not recognizing it as one you passed on --
24 A. Yeah.
25 Q. -- you never did any further inspection of this

915
bd A. Greenberg - Defendant - Recross (Mr. Durst)
1 machine, right?
2 A. No.
3 Q. Obviously as someone who is not an employee of
4 Ferrara, you never would have been in a position to ask
5 Mr. Rodriguez to do anything such as empty this machine
6 while it was vertical, right?
7 A. No.
9 MR. DURST: Quick question.
11 BY MR. DURST:
12 Q. Sir, you went out to Holland to Tonnaer
13 machinery, right?
14 A. Yes.
15 Q. And your father?
17 MS. COTTER: Objection, beyond the scope of
18 recross.
20 MR. DURST: Concerning the record keeping.
21 THE COURT: I'm sorry?
22 MR. DURST: It's concerning the record
23 keeping.
24 THE COURT: With regard to what, sir?
25 You're limited to redirect.

916
1 MR. DURST: Okay.
2 Q. Sir, you produced -- you found some things, six
3 documents relating to Tonnaer machines, right?
4 A. Yes.
5 Q. Now, none of those were purchased from Tonnaer,
6 right?
7 A. Correct.
8 Q. So you went out to Tonnaer, met with them,
9 Mrs. Tonnaer had records indicating a relationship --
11 THE COURT: Let me just hear the question
12 before --
13 MS. COTTER: He's testifying. He's not --
14 THE COURT: Excuse me. Let me hear the
15 question.
16 Q. She had a history and she testified to before
17 this Court where she said that NEC was the company that
18 Tonnaer sold their machines to and the only company in the
19 United States that Tonnaer sold their machines to for
20 import to the United States.
21 THE COURT: Sustained, beyond the scope of
22 redirect.
23 Q. Yet you do not have --
24 THE COURT: Sustained, beyond the scope.
25 MR. DURST: I'm not finished.

917
1 THE COURT: Beyond the scope of redirect.
2 Let's get to the scope.
3 MR. DURST: Okay.
4 Q. Yet you don't have one --
5 THE COURT: Sustained with regard to the
6 scope of redirect. Let's re-formulate the question
7 with regard to redirect.
8 Q. You had no document indicating any purchase
9 from Tonnaer ever?
10 A. No, we have records of purchases from Tonnaer.
11 Q. Well, you don't have any here, do you?
12 A. That's only used machines.
13 Q. What about the new machines?
14 A. What about the new machines?
15 THE COURT: Excuse me. I don't think you
16 understood me the first time or the second time. Let
17 me repeat for the last time, you're here to answer
18 questions, not ask them. Is that perfectly clear to
19 you, sir?
20 THE WITNESS: Yes. Yes, it is.
21 THE COURT: Let that be the last time.
22 Question.
23 Q. All your answers, all the documents you've
24 produced have only to do with used machines?
25 A. Yes.
918
bd A. Greenberg - Defendant - Recross (Ms. Scotto)
1 Q. You didn't bring any documents here reflecting
2 purchases from Tonnaer of new machines?
3 A. It wouldn't be relevant in this case.
6 MS. SCOTTO: Your Honor, would you allow --
7 THE COURT: Ms. Scotto, all right.
9 BY MS. SCOTTO:
10 Q. Is there a reason why you didn't bring any
11 records concerning the new machines?
12 THE COURT: You mean purchases that were
13 new purchases at the time, correct?
14 A. Because the subject of this lawsuit happens to
15 be the machine that was at Ferrara, I understood was
16 purchased as a new machine.
18 THE COURT: All right. That's not
19 responsive. That's stricken.
20 MS. SCOTTO: Your Honor, I'll --
21 THE COURT: That is not responsive to the
22 question.
23 MS. SCOTTO: I'll ask the question again
24 then, your Honor.
25 Q. Mr. Greenberg, is there a reason why you didn't

919
bd A. Greenberg - Defendant - Recross (Ms. Scotto)
1 bring the cards with you or records that you kept
2 concerning new machines, new Tonnaer machines?
3 A. Because I didn't feel it was relevant to the
4 case.
5 Q. Is the reason that you didn't look for them is
6 because your understanding is that Ferrara purchased this
7 machine used?
8 A. Yes.
10 THE COURT: You may step down, sir.
11 (Witness excused.)
12 THE COURT: All right, Ms. Cotter, do you
13 have another witness?
14 MS. COTTER: Yes. May I call the witness,
15 Judge?
16 THE COURT: Yes.
17 MS. COTTER: Jim Pascuiti.
18 THE COURT: Just before we begin, can all
19 of the ladies and gentlemen of the jury see
20 Mr. Pascuiti if we place him in front of either the
21 witness stand or in front of the Court's bench? In
22 front of the Court's bench?
23 THE JURORS: Yes.
24 THE COURT: That would give you a better
25 vantage point? All right. Mr. Pascuiti -- I'm going

920
bd Proceedings
1 to ask the court reporter to just move out a little
2 bit. I'm going to ask you whatever is comfortable for
3 you, I know you have a briefcase with you. No, no,
4 no, wait. If you want to put the briefcase on the
5 court reporter's bench.
6 THE WITNESS: I'll put it right on the
7 chair.
8 THE COURT: Okay. Very good. All right,
9 ladies and gentlemen. As Mr. Pascuiti is before you
10 in the area contiguous with the court reporter, the
11 court reporter's shelf for lack of a better word and
12 the Court's bench, can everyone see him there without
13 obstruction.
14 THE JURORS: Yes.
15 THE COURT: And the jurors in the back, can
16 everyone see Mr. Pascuiti? Is that a yes?
17 THE JURORS: Yes.
18 THE COURT: Okay. All right. You may
19 inquire, Ms. Cotter.
21 J A M E S P A S C U I T I, on behalf of the Defendant,
22 having been duly sworn, took the witness stand and
24 THE CLERK: Sir, if you would please state

921
bd J. Pascuiti - Defendant - Direct
1 THE WITNESS: James M. Pascuiti
2 P-A-S-C-U-I-T-I.
3 THE CLERK: And your business address,
4 please, sir.
5 THE WITNESS: 155 Morris Avenue,
6 Spingfield, New Jersey; 1 Penn Plaza, New York City.
7 THE CLERK: I'm sorry, sir. You have to
8 repeat that. 155 Morris Avenue.
9 THE WITNESS: Springfield, New Jersey.
11 THE COURT: All right, Ms. Cotter, you may
12 inquire.
15 BY MS. COTTER:
16 Q. Good afternoon, Mr. Pascuiti.
18 Q. What is your occupation?
19 A. I'm a vocational rehabilitation counselor and
20 an employability consultant.
21 Q. Now, in terms of specialty would vocational
22 rehabilitation or employability be your specialty?
23 A. My specialty in testifying in courts of law,
24 I've been qualified as an employability expert.
25 Q. What exactly is vocational rehabilitation?

922
1 A. As a vocational rehabilitation counselor,
2 throughout my career of approximately 34 years I have
3 worked with individuals that either have been born with or
4 have sustained an injury during the course of their
5 lifetime, work with them in the attempt to get them back
6 into the community, either to help them select and get
7 into an appropriate educational program or vocational
8 training program or to provide ongoing counseling to
9 assist them in their job placement efforts and place
10 persons into jobs.
11 As an employability expert, I evaluate
12 individuals with regard to their ability to work, the
13 types of jobs they can do, and I testify in courts of law
14 like I'm doing here today.
15 Q. Now, where do you work primarily now?
16 A. Primarily I have a private practice in
17 Springfield, New Jersey, but prior to that I worked with a
18 number of rehabilitation hospitals with persons with
19 physical disabilities and persons with psychiatric
20 disabilities.
21 Q. And did you hold that same position in June of
22 2000?
23 A. Yes.
24 Q. What do you do there from day to day in that
25 position?
923
1 A. On a day to day position I have a case load, I
2 work with individuals, assist in them to pursue their
3 vocational goals. With some individuals it's primarily
4 trying to either select an appropriate career for
5 themselves or a school to pursue or to, or a vocational
6 training program, or in some individuals we work on
7 getting a job, analyzing what they're capable of doing,
8 what their training is, what their background is, go
9 through the process of how to complete a job application,
10 and assist them in contacting employers and doing job
11 placement.
12 Q. And prior to starting that practice what was
13 your employment history?
14 A. My employment history following receiving my
15 master's degree from Seton Hall, I began working at Essex
16 County Hospital, office in Cedar Grove, New Jersey.
17 There -- it was a psychiatric hospital. I worked in the
18 sheltered workshop where persons --
19 THE COURT: I'm sorry, sir. What was your
20 master's in at Seton Hall?
21 THE WITNESS: Rehabilitation counseling.
22 Vocational counseling.
23 A. So I worked in this psychiatric hospital with
24 clients who lived in the hospital and they came down to a
25 workshop during the course of the day, 80 to 100 clients

924
1 would come down there. I supervised activities of actual
2 work that they were doing, assembly work, packaging work,
3 sorting work, heat sealing work, and then I worked with
4 some of the clients that were going to be discharged,
5 trying to hook them up with employers in the community and
6 help them get jobs. I did this for about four years.
7 After I left there I went to a community mental health
8 center where I worked in a day hospital.
9 THE COURT: What was the name of that
10 place, please?
11 THE WITNESS: It was called St. Mary's
12 Community Mental Health Center. That was in Passaic,
13 New Jersey. There I worked in a day hospital. A day
14 hospital is where individuals, they lived at home but
15 they came to the day program during the course of the
16 day. I was a vocational counselor initially and then
17 I became the clinical coordinator and the director of
18 this program and there I worked with clients,
19 assisting them get into the -- get jobs, work with
20 employers to try to do job development, and I also
21 supervised the psychologists, social workers, and
22 other therapists that worked in the institution.
23 After I did that for about four years I went on and
24 worked in a rehabilitation hospital working with
25 persons with physical disabilities. Primarily --

925
1 THE COURT: I'm sorry, sir. I'm going to
2 ask you when you refer to any places, indicate the
3 name of the places you worked at. What was that last
4 place?
5 THE WITNESS: That was Children
6 Specialized Hospital. There I worked primarily with
7 older adolescents, young adults, inpatients and
8 outpatients, and these persons had, were primarily
9 with physical disabilities, spinal cord injuries, head
10 injuries, amputations, burns, neurological and
11 orthopedic problems, and there I worked with them with
12 the ultimate goal to get them back into the community,
13 adjust to disabilities and make them, help them to be
14 productive members of society. While I did that for
15 18 years, while I was working at the hospital I
16 developed my private practice in 1980, so from 1980 to
17 the present I've had a private practice but I worked
18 two positions up until leaving the children's
19 hospital. And there my private practice was, as I
20 previously said, doing individual counseling with
21 individuals.
22 Q. Have you taught?
23 A. I have not taught any courses independently but
24 I have lectured at Fairleigh Dickinson University in terms
25 of the, of the employment class dealing with the Giant

926
1 football team, the players that were going back and
2 getting their degrees. I lectured at Seton Hall
3 University in the vocational rehab program. I also
4 lectured at Kane College with occupational and physical
5 therapy students and also have participated in the Seton
6 Hall law school with the inns of court as a lecturer.
7 Q. Are you a member of the board of vocational
8 experts?
9 A. I'm, I'm, I'm a member of the, the forensic
10 experts, yes.
11 Q. And what exactly is that?
12 A. That is -- that is a professional group of
13 forensic experts that testify in courts of law.
14 Q. Obviously you're being compensated for your
15 time here today?
16 A. I have billed out for my services in
17 preparation of this report, travel here and testifying
18 here.
19 Q. Now, did there come a time that you examined a
20 young man by the name of Cirro Rodriguez?
21 A. Yes. It was four years ago in June of 2000.
22 Q. And what did you review before examining
23 Mr. Rodriguez?
24 A. Prior to meeting with him I reviewed the
25 hospital records and medical records and reports of

927
1 physicians. To be specific I referred to my notes where I
2 reviewed the records of Bellevue Hospital, the records of
3 New York Health and Hospitals Corporation, the records of
4 Orthotics Consulting Incorporated, records of George
5 Lunis, MD, the records of Dr. Michael Marone, MD, and the
6 records of the American Hand Prosthesis. I also had --
7 was forwarded with plaintiff's answers to interrogatories
8 and the plaintiff's examination before trial.
9 Q. And after reviewing all that information, what
10 did you do to perform a vocational evaluation on
11 Mr. Rodriguez?
12 A. What I did at the time was to review the
13 information, then I scheduled an appointment to see
14 Mr. Rodriguez in my New York office, which at the time was
15 then 225 Broadway, lower Manhattan, and I met with him at
16 that time to obtain specific information from him
17 pertaining to his social situation, his educational
18 background, his work history and his physical limitations
19 at that time from his perspective.
20 I also tested him, administering a wide range
21 of achievement tests, and then following that, I did
22 research utilizing government, federal government and
23 state publications pertaining to jobs and availability of
24 jobs.
25 Q. And what did you learn generally about

928
1 Mr. Rodriguez's background?
2 A. At the time when I met him he was living in
3 Brooklyn, New York with his uncle. He was 23 years of age
4 at that time. He commuted from Brooklyn to my office in
5 Manhattan at that time. He was born and raised in Mexico,
6 relocated to the United States when he, I believe, was 22
7 years of age. He was, he was single, did not have any
8 children.
9 THE COURT: I'm sorry. He was how old
10 when he came to New York?
11 THE WITNESS: To be very specific, he was
12 17 years of age when he -- he was born in 1976 and in
13 1993 he immigrated to the United States at 17 years of
14 age, which you told me. I said that he was, he was
15 single, did not have any children, his mother and
16 father were living in Mexico, and he had three
17 siblings that lived in Mexico.
18 Q. And after interviewing Mr. Rodriguez, did you
19 perform a labor market analysis?
20 A. Yes, I did.
21 Q. What exactly is that?
22 A. Well, as part of the interview with him, I, I
23 obtained information with regard to his educational
24 background, that he graduated high school in Mexico, that
25 he also took a course, a training course in automotive

929
1 repair as well as a training course in electronic repair
2 of which would be repairing televisions, radios and other
3 electronic products to find out what his background was.
4 Then I reviewed his work history, as it were,
5 that he did prior to, prior to coming to the United
6 States. He worked on a farm originally. Then he came to
7 the United States and worked for a brief period of time as
8 a machine operator, working with equipment and a textile
9 company at Wash Textiles, and then he worked at the bakery
10 where he was, where he was injured.
11 So following that I obtained information about
12 him. I utilized federal documents, dictionary of
13 occupational titles which provided specific information
14 pertaining to his background and experience, and then I
15 had an analysis as to what he was doing before and what he
16 could do in the future, and then I did a labor market
17 analysis looking at the availability of jobs which are
18 available here in New York which he was capable of doing.
19 Q. Now, do you recall how Mr. Rodriguez got to
20 your office the day you interviewed him?
21 A. I believe he took the train, subway to my
22 office.
23 Q. Did you ever come to learn whether
24 Mr. Rodriguez has a driver's license?
25 A. I asked him if he had a driver's license and he

930
1 said he did not have a driver's license.
2 Q. Did you ever come to learn what documentation,
3 if any, he presented to Ferrara Foods when seeking
4 employment?
5 A. With regard to a driver's license?
6 Q. Or any documentation.
7 A. No, I do not have that.
8 Q. What information did you determine after
9 interviewing him about his past employment?
10 A. After his past employment there, he worked
11 primarily in a non-skilled position on a farm in Mexico
12 and then he worked for nine months, I believe, in 1993 in
13 a textile factory where he operated a machine that washed
14 fabrics, and then at Ferrara Foods from 1994 to 3/14/95
15 where he worked there as a laborer.
16 Q. And did you learn at that time in 2000 whether
17 he was receiving any medical treatment?
18 A. At the time in which I met with him he was not
19 taking any medication, nor was he in treatment with any
20 doctors.
21 Q. Was he in rehabilitation at all?
22 A. No, he was not receiving any physical therapy,
23 nor was he receiving services from the Office of
24 Vocational Rehabilitation.
25 Q. And did he have any complaints of pain in his

931
1 right hand when you interviewed him in 2000?
2 A. Specifically I did ask him if he had pain and
3 he said that he had, to be very specific, that he had pain
4 in his right hand when it is cold and damp, and he related
5 it hurts when I hit something. If he banged it against
6 something he stated that it hurts and he said the pain was
7 on the tips, on the tip of his thumb and the stumps of the
8 three middle fingers that were amputated.
9 Q. What did you determine --
10 THE COURT: I'm sorry. The three --
11 THE WITNESS: Middle fingers, the --
12 THE COURT: The three middle fingers?
14 Q. What did you determine with respect to his
15 ability to sit and stand?
16 A. As part of the evaluation in terms of making a
17 determination if he can perform a job, jobs require people
18 to be able to sit stand, walk, bend and do various other
19 functions. I asked him with regard to sitting. He was
20 not limited in his ability to sit. With regard to
21 standing, he was not limited in his ability to stand. He
22 stated he was not limited in his ability to walk.
23 Q. How about with respect to bending, lifting or
24 driving?
25 A. He stated that he was not limited in ability to

932
1 lift and carry items with his left hand but he was limited
2 in the use of his right hand. He was not limited in his
3 ability to hear, to see, and he stated that he does not --
4 he's -- I asked him about a driver's license because I
5 wanted to make a determination if he could work in jobs
6 that require driving. He said that he does not have a
7 driver's license but he has parked his uncle's car or
8 moved it from one side of the street to the other, so he
9 knew how to operate a motor vehicle and did so but hadn't
10 gotten to the point where he got a driver's license and
11 most probably would be able to get a driver's license.
12 Q. Now, what did your vocational evaluation of
13 Mr. Rodriguez involve?
14 A. The vocational evaluation would be to make an
15 assessment as to his education, his level of intelligence,
16 look at the jobs that he was doing before, reference them
17 with the government publications, which speaks about the
18 ability that a person has to have to be able to perform
19 those type of jobs, and then to make a determination as to
20 the type of jobs he can do.
21 Jobs are classified as sedentary, light, heavy,
22 medium and very heavy work, so because of the loss of the
23 digits of his right hand, I eliminated jobs that would be
24 heavy. I eliminated jobs that would be very heavy,
25 eliminated jobs that would be medium and just focused on

933
1 jobs that were classified as sedentary or light work,
2 which he could do.
3 Q. And what types of tests did you do on
4 Mr. Rodriguez to formulate those conclusions?
5 A. As part of the process, I administered a wide
6 range of achievement tests in English to him. He was able
7 to read on an eighth grade level, he was able to do
8 spelling on a fifth grade level, and he was able to do
9 arithmetic on a fourth grade level, and this was the
10 results of the tests which I administered to him.
11 Q. And did you formulate an opinion ultimately as
12 to Mr. Rodriguez after doing that vocational evaluation
13 and those testing, that testing?
14 A. Yes. My assessment was that he's a high school
15 graduate in Mexico, following high school he went on and
16 pursued two different vocational programs and successfully
17 completed them, one in electronics repair and the other in
18 mechanical repair. Based upon that, made the assessment
19 that he had at least average intelligence, able to
20 understand, comprehend, has some ability to communicate in
21 English, which he did do in the course of the interview.
22 I did have an interpreter there, but he was able to answer
23 80 to 90 percent of the questions in English back to me.
24 Used the interpreter to do some interpretations. He was
25 not receiving any psychological counseling that he said,

934
1 any psychiatric problems. He did not have any cognitive
2 problems with memory or concentration and he had the
3 training, as I previously had said, and has the ability to
4 do jobs that would be classified as sedentary and light
5 work.
6 Q. And what were the results of your labor market
7 analysis? Did you determine that there were specific jobs
8 that Mr. Rodriguez can do?
9 A. Yes, I did, and as a result of that, I looked
10 at jobs taking into account even if he couldn't
11 communicate in English, jobs that would be sedentary and
12 light and keeping in mind the limitations that he has with
13 his right hand. He could work in a bodega, work in sales,
14 waiting on people that come into the store, able to
15 communicate in Spanish and in English. He could be a
16 vendor operating a stand on the corner, newspaper stand,
17 magazine stand, cigarettes, able, to be able to do that
18 type of work. Also he could work for a company, a repair
19 shop that did automotive repair, be able to, be -- because
20 of his background, especially, you know, in the Spanish
21 speaking neighborhood with his background of being trained
22 in mechanics, be able to, to be able to write up the
23 repair orders, someone comes in, knows what equipment --
24 they would have to be able to -- he would have to be able
25 to order from the parts company, order the parts, receive

935
1 the parts, be aware of the parts.
2 Also, if he had his driver's license, he could
3 work for a parts company, where as that, this is, this is
4 a company that supplies gas stations and repair shops
5 parts on a daily basis that they do need -- he would have
6 to drive to the particular location and hand the parts
7 over to the individual.
8 In terms of service occupations, he could work
9 as a crossing guard and also work in the area of security.
10 Post 9/11 there are many security jobs that are available.
11 People monitor cameras, television cameras to observe
12 areas, locations. Could work in that capacity. Also
13 could be a quality control inspector when products are
14 produced to be able to look at a product to see if it is
15 done right, if it's, the color is right, the label's on
16 right, if it's filled to the top where it should be, the
17 size of it, if it's the appropriate size. Well within his
18 capabilities.
19 Also could work as in an operation where
20 products are produced by machinery where the person's
21 there to have to observe that the machine is working
22 properly, had to push buttons to make sure levers and pull
23 levers, to make sure doors and products are being
24 processed the appropriate way. All in his capabilities.
25 Also work in a service station, be able to pump gasoline.

936
1 If he were to get his driver's license he would be able to
2 work as a taxi driver, he would be able to work as a
3 parking lot attendant, he would be able to work as a
4 forklift operator, and work in a shipping and receiving
5 department. And these are the jobs, taking into account
6 even if he could not communicate in English and even where
7 the limitations that he has of his hand. There are some
8 jobs he is capable of doing.
9 Q. And did you ever come to learn from
10 Mr. Rodriguez whether he had looked for jobs as of that
11 time in 2000?
12 A. At that time he had not looked for jobs in 2000
13 when I met with him.
14 Q. To your knowledge, are there agencies out there
15 to help an individual like Mr. Rodriguez obtain
16 employment?
17 A. Yes, there are. In New York there's Vesid(ph),
18 there's the Office of Vocational Rehab. That has
19 vocational counselors similar to myself that work with
20 individuals that come in. When I say work with them,
21 either to assist them, place them in a job, or to provide
22 resources to learn to be trained to do other types of
23 things or to be able to provide some additional education
24 to increase his skills. This agency has counselors that
25 work with employers. They go out to physical job sites,

937
bd J. Pascuiti - Defendant - Cross (Mr. Durst)
1 talk with employers, identify jobs and try to match up
2 clients of theirs to be able to work in those particular
3 jobs, and he would also benefit from the Americans With
4 Disabilities Act in terms of preventing discrimination
5 against him because he has the physical limitations of his
6 right hand.
7 MS. COTTER: Thank you very much. I have
8 nothing further.
11 BY MR. DURST:
12 Q. Sir, what is the current percentage of
13 unemployed people in this country?
14 A. The entire country? Something about -- well,
15 it's been, of the past month it's been varying week to
16 week, about five percent, 5.5 percent.
17 Q. And that includes people like accountants,
18 stockbrokers, college graduates?
19 A. Well, it's broken up to different occupations.
20 Some, some occupations it's more prevalent and some it's
21 less. In New York City some of the highly paid
22 stockbrokers, as you so mentioned, are more -- there was
23 more unemployment with them than some of the people that
24 were doing entry level positions.
25 Q. People a lot more skilled than Mr. Rodriguez

938
1 are unemployed; am I correct?
2 A. Yes, there are people that are, that are
3 professionals that are unemployed because of the economy
4 the way it is.
5 Q. People who have educational levels higher than
6 the ninth grade are unemployed, people with a reading
7 ability higher than the eighth grade are still unemployed,
8 right?
9 A. There are persons very qualified, trained or
10 some attorneys that are unemployed.
11 Q. And people with greater than fourth grade math
12 ability are unemployed?
13 A. Yes.
14 Q. These are people out looking for work, right?
15 A. You're asking me two different things.
16 Q. The people that are unemployed, do you think
17 they're looking for work?
18 A. Well, there are many people that are unemployed
19 that look for work on a regular basis and there are many
20 people that are unemployed that don't look for work.
21 Q. Now, Mr. Rodriguez, when he was injured, how
22 old was he, by the way, when he was injured?
23 A. I have to do the math but he was -- the injury,
24 I believe, is in '94, if I'm correct.
25 Q. 1995?
939
1 A. '95, and he was born in --
2 Q. Would you accept that he was 19 years old?
3 A. -- '76. Yes, 19 years of age.
4 Q. Now, his experience at that time is fairly
5 limited, am I right, his work experience at that time?
6 A. His work history?
7 Q. Yes.
8 A. Was what I said that it was.
9 Q. Yes, very limited, am I correct? He didn't
10 have a lot of experience at that time working?
11 A. He did not have a lot of time on different
12 jobs, yes.
13 Q. Now, he would now have to find a job, wouldn't
14 he, that didn't require more than fourth grade math
15 abilities, didn't require greater than fifth grade
16 spelling, didn't require greater than eighth grade
17 writing, didn't require him to speak English, didn't
18 require him to read English; am I correct so far?
19 A. Well, from my perspective he was able to spell
20 on a fifth grade level, as I testified to, he was able to
21 read English for me at the time, so -- and he was able to
22 communicate in English, so I don't think that is accurate
23 as he presented himself to me, sir.
24 Q. Okay.
25 A. But if you want me to assume that to be true,

940
1 I'll assume that to be true.
2 Q. Okay. The job that he would have to have would
3 not really be a job where his cosmetic deformity --
5 Q. I mean there are jobs where your cosmetic
6 deformity could pretty much preclude you from getting the
7 job?
11 A. Ther are people that discriminate against
12 someone that has a cosmetic deformity in hiring them in a
13 specific job.
14 Q. Such as his?
15 A. There may be employers that would do so in some
16 jobs, yes.
17 Q. You'll give me that, there may be such
18 employers?
19 A. I'm saying -- what I'm saying is the fact that
20 there are some employers that discriminate, they
21 discriminate against people because of race, color, sex,
22 ethnic background and disability. There are people that
23 discriminate and there are some people that don't.
24 Q. You might find that retail sales might be one
25 of those areas where people don't want to hire somebody

941
1 who's going to possibly have an effect on the comfort
2 level of their customers, right?
3 A. If we're talking about a large retail chain,
4 that may exist in their practices, but it's been my
5 experience working with persons that have disabilities,
6 amputation, that is, people do wear a prosthesis that one
7 can't even tell that one is, is missing a digit or a hand.
8 Q. Right. And the reason they wear that
9 prosthesis is they know that there is so much of a problem
10 that results from people being grossed out from seeing a
11 physical deformity; do you know what I'm saying? Am I
12 right?
13 A. You're asking me a lot of questions there.
14 You're asking me a compounded question. I can't answer
15 that yes or no.
16 Q. You can't answer that yes --
17 A. Yes or no, the way it's --
18 THE COURT: All right. Restate the
19 question.
20 MR. DURST: Okay. I don't need to restate
21 it. I'll withdraw it.
22 Q. Now, he would have to find a job that really
23 doesn't require much experience because he didn't, he
24 doesn't really have any experience, right?
25 A. We're talking about jobs that were entry level,

942
1 non-skilled positions similar to what he, what he as an,
2 as his age and what his lack of ability and training has
3 been, but on the other hand, he did have the training,
4 completed two training programs, has a knowledge in terms
5 of the electronics and repair there and also has the
6 automotive, the knowledge of repair of and parts of
7 automotive equipment.
8 Q. By the way, your opinion was based on the
9 understanding that he had a high school diploma?
10 A. Yes.
11 Q. Now, do you understand --
12 A. He completed high school in Mexico which
13 included -- I'm familiar with the, the school system there
14 where you have academics for, I believe, six years, then
15 move on to a specific area where you're trained --
16 Q. Sir, I'm not asking you --
17 A. Okay.
18 MS. COTTER: Your Honor, I just ask that
19 he let the witness finish his answer.
20 MR. DURST: It's unresponsive.
21 THE COURT: All right. Overruled. Let's
22 put a question, all right?
23 Q. Would it affect your opinion at all if you were
24 to learn that he testified here in front of this jury
25 under oath that he had actually completed nine years of

943
1 school, which would be, you know, a ninth grade level?
2 A. In general --
4 Q. In mathematics, I'm sorry, in Mexico.
6 Q. Would that have some effect on your opinion?
7 A. It would not have an effect on my opinion
8 because my opinion would be that, would be the general
9 academic program and then following that, as in many
10 countries similar to Mexico where you go on and get some
11 specific training in a specific area, which he did do, and
12 he completed his educational program.
13 Q. Would it also affect your opinion what kind of
14 personality Mr. Rodriguez has as to what he can do and
15 what he really can't do? Do you know whether he is --
16 would you consider him to be a talkative fellow based on
17 your encounter with him?
18 A. I don't have an opinion if he's a talkative
19 person.
20 Q. Would you consider him to be a little bit
21 depressed based on your conversation with him?
22 A. When I have evaluated him and the records I
23 reviewed, he was not in treatment with a psychiatrist or
24 psychologist for depression.
25 Q. Maybe he's just not the whiny kind of guy, but

944
1 that doesn't mean that he was not depressed, does it?
3 THE COURT: Sustained as to the question.
4 Q. So he would have to have a job, wouldn't he,
5 that really kind of is within his personality type to
6 handle -- like if you're a salesperson, you got to be
7 pretty -- you got to be pushy, not really quiet, kind of
8 assertive, right?
9 MS. COTTER: Objection, multiple
10 questions.
12 A. There's some salespersons in some trades that
13 are that way, yes.
14 Q. Now, with regard to driving, now, he doesn't,
15 he'd have to have a job, right, if he was going to find a
16 job right now, it would have to be a job where he doesn't
17 have to drive because he doesn't have a license?
18 A. I don't know if he has a license or not at the
19 present time. My testimony is that at the time which I
20 saw him he didn't have a license, and my opinion is he
21 most probably could get a license based upon his physical
22 abilities.
23 Q. With regard to clerical skills working in an
24 office, you know, most office workers, they got to speak
25 English to get, to get the job, don't they?

945
1 A. I did not testify that he should work in an
2 office here.
3 Q. He really couldn't do clerical jobs in an
4 office too well currently, could he?
5 A. Aside from possibly working as an -- in the
6 mail room.
7 Q. Well, these requirements for what he can, you
8 know, what he can't do as a worker, they eliminated a lot
9 of jobs, don't they, from his possibility?
10 A. His limitations eliminate some, a lot of jobs
11 at the present time. I'm not, I'm not here testifying,
12 saying that he can do all and every job. I'm here
13 testifying, saying he can't do a lot of jobs but I'm also
14 here stating that there are a number of jobs that he can
15 do if he wanted to do them.
16 Q. Now, the jobs that he would be competing for,
17 he would still have those easier jobs that he could do
18 which are called sedentary or light work, a lot of
19 competition for that work, isn't it?
20 A. It depends. I mean like there are many jobs,
21 entry level jobs that a lot of people don't want.
22 Q. Like the newspaper vendor for instance?
23 A. They may not want those jobs for a number of
24 reasons, so therefore, you can't make a blanket statement
25 because these jobs are as such you presented that there's

946
1 overwhelmingly a lot of competition for.
2 Q. So he might be able to get the jobs that nobody
3 else wants, right?
4 A. I'm not saying that. You asked me about the
5 extensive amount of competition for these jobs that -- I'm
6 stating -- and I'm saying that there will be other people
7 probably wanting to get those jobs, yes, but there are a
8 number of jobs that fall in that particular area that are
9 available.
10 Q. Well, you mentioned that he could be a
11 newspaper vendor, right?
12 A. Yes, sir.
13 Q. Okay. So he could be a newspaper vendor. How
14 about the automotive service, now if you were working in
15 an automotive service location, don't you have to -- you
16 write with your right hand?
17 A. Sir, what -- I don't know if you have to write
18 with your right hand. What I'm testifying to you is you
19 go 10 blocks from the courthouse off, off the Grand
20 Concourse and there's an abundance of shops that are
21 automotive repair shops that there has to be somebody
22 there to greet the person that comes in, most probably be
23 bilingual, English and Spanish, and be able to listen to
24 what the problem is and to be able to order the
25 appropriate parts that are delivered there to have that

947
1 automobile repaired.
2 Q. When you take the order, you've got to write it
3 down, right?
4 A. Yes, you do, sir.
5 Q. Now, he writes with his right hand, correct?
6 A. Originally he wrote with his right hand and now
7 he can write with his left hand.
8 Q. Can he?
9 A. He did -- no -- he completed the, the testing
10 that he did for me --
11 Q. So, he's trying to learn to write with his left
12 hand.
13 Now, two people come up to the job automotive
14 service where, you know, one guy's got two hands, maybe he
15 can do a little helping around the office besides, you
16 know, automotive helping. The other guy comes up and
17 says, no, I can just write. Which one's going to get the
18 job?
19 A. But the other one, the second one that you
20 mentioned also says that I have been trained, I've done
21 this before and I have the knowledge. And who is going to
22 get the job? One or the other will get the job.
23 Q. Mr. Rodriguez was trained in that job when he
24 was 15 years old, right?
25 A. Okay.
948
1 Q. Did he ever work in the automotive service
2 industry?
3 A. Not that I'm aware of.
4 Q. Do you think that experience he had being
5 trained in Mexico is going to really benefit him when he
6 applies for that job?
7 A. Yes.
8 Q. You're not a little biased here towards the
9 people you're testifying for?
10 A. I'm trying to be completely straightforward
11 with you, saying that there are many jobs that he can't do
12 and there are some jobs that he can do.
13 Q. Okay. You mentioned that he could be a
14 crossing guard?
15 A. Yes, sir.
16 Q. Crossing guards typically housewives, people
17 that, you know, have children in the neighborhood, maybe
18 they work as the crossing guard and everybody kind of
19 knows who they are, and that's typically the people that
20 get the crossing guard jobs, right?
21 A. I mean you explained it to be a demeaning job
22 with housewives. I mean like there are persons that do
23 that job in the morning, afternoon and at night.
24 Q. So he could maybe be a crossing guard. Now, a
25 security guard?
949
1 A. Yes.
2 Q. Security guard, doesn't that mean that you have
3 to be able to react if there's a security problem?
4 A. There are various jobs in security and there
5 are some jobs in security where a person carries a gun.
6 There are some jobs in security a person walks the
7 warehouses and the areas at night and have to respond to
8 certain situations. There are security jobs where a
9 person is in an airport and watches a video camera
10 throughout the day with passengers coming through,
11 checking. There are security guards that work downstairs
12 behind the scenes in the airport that monitor security
13 cameras on a regular basis. There are security guards
14 that work in office buildings, in, in, in an office with
15 monitoring security of outside the building, inside the
16 building on a regular basis. There are security guards
17 that work for the transit authority that monitors
18 surveillance equipment in, in the various bus stations and
19 subway stations. So it does vary.
20 THE COURT: Mr. Durst, let the witness
21 finish his testimony. I said that before, sir.
22 Sir --
24 THE COURT: The court reporter cannot take
25 down what two people are saying, so let the witness

950
1 finish.
2 A. So in answer to your question, yes, there are
3 some security positions where you may have to do something
4 to apprehend. There are some security positions where you
5 don't have to.
6 Q. So he would have to then go and pick and choose
7 what security jobs that that would be. It wouldn't be all
8 security jobs?
9 A. What I'm saying is that there are security jobs
10 that are available specifically in the airport, in the bus
11 terminals, in the railroad terminals that are increasing.
12 They can't fill these jobs with people to do them.
13 Q. Really?
14 A. Yes.
15 Q. I guess a lot of people would like to know
16 that, wouldn't they, they could just go watch TV and
17 that's their job?
18 A. No, sir. I'm not -- you just -- if you look at
19 the newspaper, there's a variety of security positions as
20 I described that are readily available that need to be
21 filled on a regular basis.
22 Q. Basically you just sit there and you watch the
23 monitor and do nothing else all day?
24 A. Well, sir, you go through an airport, there's a
25 person stationed at that booth watching the monitor as to

951
1 what goes by and then they take a break to rest and they
2 come back and watch it again. That's what they do, or
3 there are persons that are downstairs watching the larger
4 bags go through the security equipment.
5 Q. That's a pretty cushy job to have, isn't it?
6 That would be a good job to have, wouldn't it, you just
7 sitting there watching?
8 A. I wouldn't want to do it. I mean I wouldn't
9 want to. It's a job that, you know, you have to be there,
10 go to work on a regular basis, you have to watch that
11 monitor. Some people may not want to do it.
12 Q. Do you really think he's going to walk in and
13 get one of those jobs somewhere?
14 A. What I'm saying is he has the abilities if he
15 makes any effort whatsoever to attempt to get a job either
16 on his own or utilize the resources that are available,
17 that people can help him, that there are jobs available
18 for him to do.
19 Q. Now, how about quality control inspector?
20 Don't you need a little experience in order to inspect
21 stuff? Do you have to know what you're inspecting? You
22 have to know something about the process of making the
23 stuff? Why is he going to be able to march in and get
24 that job with his fourth grade math, his fifth grade
25 spelling, his eighth grade writing, how's he going to go

952
1 in and just get that quality control job?
2 A. Because these jobs are advertised, these jobs
3 are available, and a person has to go in what is for a
4 specific job. A pharmaceutical company is producing
5 bottles of a particular product or they're producing X
6 number of pills on a particular panel, the person has to
7 be there every so many to be able to look at them, make
8 sure it's being done as it's supposed to be done or to be
9 able to look at it to see if the label's being put on the
10 way the label is supposed to be on there. Each, each
11 operation the person is instructed, this is how it should
12 look, this is what has to be done, and you have to sit
13 there and monitor, make sure it's done. I place the
14 person in a job where they listen to audio, audio tapes.
15 Q. I have no doubt that there's something he can
16 do. The question is what is the likelihood of the man
17 being given that job?
18 A. The likelihood if one makes an effort to go out
19 and get a job and goes to enough places one's going to get
20 a job if they really want to do it.
21 Q. How about the taxi driver? Now, when you're
22 driving a taxi, are you saying that you drive your taxi
23 with one hand?
24 A. I drive a car.
25 Q. You drive a car, that's fine, you have two

953
1 hands.
2 A. I guess so, yeah. One, one is on the -- one I
3 use for, to accelerate and brake and one I use to steer
4 with.
5 Q. Right, ten and four, that's where you're
6 supposed to put your hands, right?
7 A. Who said?
8 Q. When you drive a car?
9 A. Who's -- I don't know who --
10 Q. Aren't you supposed to steer, make your turns
11 with two hands, not one hand? If you go making your turns
12 with one hand, what if that hand slips, you know, I mean
13 how are you making your turns with one hand in New York
14 City? You're going to drive a taxi?
15 A. Sir, if you observe people driving, nine out of
16 ten people who are driving with one hand, one hand is
17 either out the window, one's holding the coffee cup, one's
18 holding a cell phone. People drive with one hand.
19 THE COURT: All right. We're going to
20 stop right here.
21 MR. DURST: Your Honor, I can finish.
22 THE COURT: We're going to stop right here.
23 MR. DURST: Two more questions.
24 THE COURT: We're --
25 MR. DURST: Two questions.

954
bd Proceedings
1 THE COURT: I'm not amused, Mr. Durst, and
2 I have not been amused.
3 MR. DURST: I hate to call him back for
4 this.
5 THE COURT: I'm not amused and I don't want
6 any side comments.
7 MR. DURST: Sorry.
8 THE COURT: We'll be back here tomorrow
9 morning, ladies and gentlemen, 10 o'clock tomorrow
10 morning. All right? Please don't discuss the case
11 amongst yourselves or with anyone else. Please do not
12 allow anyone to discuss it in your presence. Please
13 don't speak to any party, witness or attorney. Please
14 be on time, everyone. Actually let's make it 9:45.
15 MR. DURST: Your Honor, I am done with this
16 witness.
17 THE COURT: Have a seat. 9:45 tomorrow
18 morning. All right? Have a good night, everyone.
21 courtroom.)
22 THE COURT: We're in recess.
23 (Trial adjourned to May 28, 2004.)
24
25
955

2 ----------------------------------------X
CIRRO RODRIGUEZ,
3
Plaintiff,
4 Index No.
-against-
5 16482/95
6
Defendant.
7 ----------------------------------------X
8
9 Index No.
-against- 16482/95
10
11
12 ----------------------------------------X

14 May 28, 2004
15 B E F O R E:

17
19 (Same as previously noted.)

--------------------------------------------------
24 jury.)

956
Proceedings
1 outside the hearing of the jurors who are in
2 the jury room.
3 All right, off the record at this
4 point.
5 (Discussion is held off the record.)
7 objection to the plaintiff reading the portion
8 of Ed Scoppa's transcript which is dated May 2,
9 1997, page 13 line 14 through -- sorry, page 15
10 line 14 through page 16 line 12.
11 These questions concern a
12 conversation that Ed Scoppa supposedly had with
13 the plaintiff's investigator, Vanessa Manguel,
14 and I believe it would be inconsistent with the
15 Court's ruling to allow the plaintiff's
16 attorney to read from this when the Court has
17 already precluded Vanessa Manguel from
18 testifying.
19 It's also not an inconsistent
20 statement.
21 MS. COTTER: I would concur in that.
23 MR. DURST: Your Honor, my
24 understanding is that once somebody produces
25 somebody for a deposition to speak on behalf of

957
Proceedings
1 that matter, anything in the deposition may be
2 read if that witness -- well, by an opposing
3 party. And this is his deposition testimony.
4 THE COURT: That's not her objection.
5 Her objection relates to an inconsistent
6 statement or proposed inconsistent statement.
7 MR. DURST: Where not using this as
8 an inconsistent statement.
9 THE COURT: I believe we had this
10 discussion on the record before. With regard
11 to the investigator, Vanessa Manguel, I had
12 received certain information with regard to her
13 projected testimony vis-a-vis conversations she
14 had with Mr. Scoppa at a time I believe before
15 the taking of this deposition.
16 At the time that I made the ruling, I
17 was under the impression that Mr. Scoppa was
18 not going to be testifying at trial and,
19 therefore, I was going to preclude Mr. Durst
20 from bringing in Ms. Manguel, a live witness,
21 to attempt to impeach Mr. Scoppa in his EBT
22 testimony.
23 Thereafter, it appeared, Ms. Scotto,
24 that you informed the Court that you were
25 actually going to bring in Mr. Scoppa. Had

958
Proceedings
1 that been the case, Mr. Durst would have been
2 free, if Mr. Scoppa had taken the witness stand
3 in court and testified in court, he would have
4 been free to impeach Mr. Scoppa because he was
5 a declarant available for the jury to see in
6 the courtroom and he would have been able to
7 impeach him either through a written
8 inconsistent statement or through the testimony
9 of someone with regard to an oral inconsistent
10 statement.
11 Now, it appears that, Ms. Scotto, you
12 are not going to call Mr. Scoppa. So we are
13 back to square one in that Mr. Durst may use
14 the EBT testimony of Mr. Scoppa as indicated in
15 this particular section. However, he may not
16 utilize Ms. Manguel to impeach a witness who is
17 not present in the courtroom, so he may not do
18 that.
19 He may use the EBT testimony since I
20 assume all of you were present for that
21 testimony or there was counsel present for all
22 of the individuals at that EBT. He may utilize
23 the EBT as allowed by the CPLR, but he may not
24 bring in extrinsic testimony from a witness
25 with regard to an inconsistent statement when

959
Proceedings
1 Mr. Scoppa is not actually in the courtroom.
2 All right, so that's my ruling.
3 Anything else?
4 MS. COTTER: Not at this time.
5 MS. SCOTTO: No, there is other
6 objections.
7 On page 22, lines 11 through 15,
8 those questions concern the amount that was
9 paid for the machine and Mr. Scoppa's answer is
10 basically he knows what the value of the
11 machine was, not what the cost was. So I don't
12 think the answer is responsive to the question.
13 I don't think that should be permitted.
14 MR. DURST: He just said he didn't
15 know exactly and he gave his estimate based on
16 his knowledge.
17 THE COURT: And Mr. Scoppa is one of
18 the vice-presidents of Ferrara. That objection
19 is overruled. I will allow that.
20 I take it all the dog-eared pages are
21 the pages you will be reading from?
25 MS. SCOTTO: Page 32, lines 2 through

960
Proceedings
1 11, that concerns a conversation that Ed Scoppa
2 had with Miguel Rogel, the person who was in
3 the videotaped deposition. He is asking him if
4 the machine was able to tilt on the day of the
5 occurrence. He said, I believe so, that's what
6 Miguel told me.
7 That's hearsay. He doesn't have any
8 personal knowledge. Earlier in his transcript
9 he even says he didn't work in the Brooklyn
10 location, he only worked in Manhattan.
11 MR. DURST: I believe that goes to
12 the credibility of Miguel Rogel.
13 MS. SCOTTO: You can't impeach Miguel
14 Rogel with Ed Scoppa's transcript.
15 MR. DURST: That he said something
16 totally inconsistent with what he testified to
17 at trial, that he told his boss something
18 inconsistent.
19 THE COURT: That's your reason for
20 asking that be read?
21 MR. DURST: Yes, your Honor. I mean,
22 also in addition it's just part of the EBT
23 transcript.
24 THE COURT: "Do you know if on the
25 date of this incident the motor that tilted

961
Proceedings
1 dough was functioning properly?"
2 Again, I'm going to allow this
3 testimony. I'm overruling the objection. I'm
4 going to allow that testimony with regard to
5 Mr. Scoppa's scope in terms of his being the
6 vice-president of this entity. He is charged
7 with the knowledge of the operation of the
8 business and the machines therein. So I'm
9 allowing that.
10 Anything else?
11 MS. SCOTTO: Yes, page 35, lines 7
12 through 25. He asks the question -- it's the
13 same objection, your Honor, about whether the
14 cover was attached to the machine. And he
15 wasn't there, he doesn't have personal
16 knowledge.
18 If he wasn't present how would he even know?
19 He just stopped by from time to time.
20 MR. DURST: He testifies in response
21 that the cover was attached because it's an
22 integral part of the machine and it belongs on
23 it.
24 MS. COTTER: You know what, I
25 withdraw that objection.

962
Proceedings
1 THE COURT: Based on his testimony in
2 this particular line of questioning that
3 objection is overruled.
4 MS. SCOTTO: I have one more, your
5 Honor.
6 THE COURT: Okay.
7 MS. SCOTTO: Page 36, lines 8 through
8 17. This concerns the OSHA inspector being at
9 the premises and the conversation with the OSHA
10 inspector whether or not Ferrara Foods was
11 fined. And the Court has already ruled that
12 that should not come before the jury.
13 THE COURT: 8 through which, 29?
14 MS. SCOTTO: 8 through 17. In fact,
15 he is not even certain in his testimony as to
16 what the answer is.
18 MR. DURST: When he states in
19 response that he believes there are five or six
20 things, he just doesn't know if one of them was
21 for failing to cover the machine and having the
22 cover attached. That to me is relevant
23 testimony because it leads you to believe that
24 one of the -- that he believes that one of the
25 five things, five or six things may have --

963
Proceedings
1 well, he didn't exclude that it was failure to
2 have the cover on the machine that they were
3 cited for.
4 In fact, he indicates that he
5 believes that there are five or six things that
6 they were cited for, but he just doesn't know
7 if that was one of them. That to me is
8 relevant, logically relevant to indicate he is
9 in a position to know whether it was or not one
10 of the ones he was cited for. And he doesn't
11 recall leads -- tends to make you believe that
12 if one of them was not that, he would have
13 recalled it and he would have been able to say,
14 no, I was not cited.
15 THE COURT: That objection is
16 sustained.
17 What else? Anything else?
18 MS. SCOTTO: That was it.
19 MS. COTTER: I have one other issue,
20 Judge.
21 As you recall yesterday, Arthur
22 Greenberg, my vice-president was here and we
23 had photocopies of six index cards indicating
24 his sale and purchase of various Tonnaer
25 mixers. The Court ruled that photocopies could

964
Proceedings
1 not be admitted into evidence despite the fact
2 that the witness had personal knowledge of the
3 record keeping and the fact that they are fair
4 and accurate photocopies of the originals.
5 I would like to call Arthur Greenberg
6 with the original cards and bring the original
7 cards into evidence.
8 THE COURT: Not at this time. We are
9 going to proceed right now.
10 MS. COTTER: Tuesday afternoon?
11 THE COURT: If he's got -- does he
12 have the originals?
13 MS. COTTER: He does.
14 THE COURT: Is there a reason he
15 didn't bring them with him yesterday?
16 MS. COTTER: He didn't -- he didn't
17 have a reason. He didn't think, you know, he
18 just thought he could photocopy them, but he
19 has the original.
20 THE COURT: We will take that up
21 later on.
22 MR. DURST: Your Honor, if that
23 becomes a problem, I would just as soon waive
24 my objection, withdraw my objection to the
25 admission of those records and --

965
Proceedings
1 THE COURT: We will take that up this
2 afternoon, okay.
3 Let's get going with this witness or
4 with this EBT.
5 MR. DURST: Your Honor, may I put one
6 thing on the record quickly before I forget it.
7 That is, that the parties have stipulated to
8 the amount of medical bills.
9 THE COURT: That we can wait for a
10 little while.
11 MR. DURST: I didn't want to forget
12 it.
18 gentlemen. Have a seat. Welcome back.
19 Once again we are taking a witness --
20 well, we are taking the defendant out of turn.
21 All right. The plaintiff has yet to conclude,
22 but we are taking the defendant out of turn.
23 All right.
24 Ms. Cotter.
25 MS. COTTER: Thank you, your Honor.

966
Proceedings
1 At this time I'm going to call Investigator
2 Ernest Freymuller, F-R-E-Y-M-U-L-L-E-R, to
3 establish the unavailability of --
4 THE COURT: Just call him.
5 MS. COTTER: -- witness Terrence
6 Saachi.
7 THE COURT: Just call him. Let's
8 just do it that way.
9 MR. DURST: For the record, your
10 Honor, I would concede the unavailability.
11 MS. COTTER: Could I put A, B and C
12 on an easel?
13 THE COURT: Yes.
14 E R N E S T D. F R E Y M U L L E R,
15 having been duly sworn stated his address as
16 175 Main Street, White Plains, New York 10601,
17 took the witness stand and testified as
18 follows:
19 THE COURT: Good morning,
20 Mr. Freymuller.
21 THE WITNESS: Good morning, your
22 Honor.
23 THE COURT: I'm going to ask you to
24 speak up nice and loudly, clear and slowly.
25
967
Ernest D. Freymuller - for Defendant - Direct (Cotter)
2 BY MS. COTTER:
3 Q. Good morning.
4 A. Good morning.
5 Q. By whom are you employed?
6 A. Thomas F. Delaney, Inc.
7 Q. Were you asked to attempt to serve a
8 subpoena at some point regarding the litigation
9 involving Cirro Rodriguez on an individual by the
10 name of Edward Scoppa?
11 A. Yes, Counselor.
12 Q. Were you able to serve a valid subpoena on
13 that individual?
14 A. We served a subpoena, but it was not a
15 valid subpoena because it was an out-of-state, New
16 Jersey subpoena, carrying no weight in the State of
17 New York.
18 Q. So you learned that Mr. Scoppa presently
19 lives in New Jersey?
20 A. Mr. Scoppa presently lives in New Jersey.
21 Q. Did you come to learn whether he is still
22 employed by third-party defendant, Ferrara Foods?
23 A. I came to learn that Mr. Scoppa is no
24 longer employed by Ferrara Foods.
25 Q. Did you also make an attempt to contact

968
1 one of National Equipment's prior foremen named
2 Terry Saachi?
3 A. Yes, I did.
4 Q. Did you come to learn where Mr. Saachi now
5 resides?
6 A. Yes, I did.
7 Q. Where is that?
8 A. South Carolina.
9 Q. Living in South Carolina, is he subject to
10 the subpoena power to come to New York here to
11 trial?
12 A. No, he isn't to the best of my knowledge.
13 Q. Did you come to learn that he was
14 unavailable to come voluntarily here to New York?
15 A. Yes, I did.
16 Q. What was the circumstances surrounding
17 that?
18 A. He is has lung cancer and he is unable to
19 travel. He is under constant physical treatment.
20 Q. Did you come to learn his age?
21 A. He is approximately 84 years old.
22 Q. Were you able to obtain a physician's
23 letter confirming that he does indeed -- he is
24 indeed in the last stages of lung cancer?
25 A. Yes, I have that.

969
1 Q. And do you have that with you?
2 A. I do.
3 MS. COTTER: At this time, Judge, I
4 propose to read some testimony of Terrence
5 Saachi with an individual from my office who
6 will sit in the witness box and read --
7 THE COURT: So you are done with
8 Mr. Freymuller?
9 MS. COTTER: Yes.
10 THE COURT: Nothing further from
11 either counsel, correct?
12 MS. SCOTTO: No questions, your
13 Honor.
15 THE COURT: Thank you very much. You
16 may step down.
17 THE WITNESS: Thank you very much,
18 your Honor.
19 (Witness left stand.)
20 MS. COTTER: Your Honor, can we put
21 A, B and C on the easel so the jury can look at
22 them as we are reading?
24 believe you recall that preliminarily before
25 the case began I gave you some preliminary

970
Proceedings
1 instructions. One of the preliminary
2 instructions included the possible reading of
3 an examination before trial. That's what we
4 will be doing here now.
5 The -- Ms. Cotter and another
6 individual will be reading the transcript to
7 you. Again, as I explained to you, it's as if
8 the witness were actually before you, all
9 right?
10 MS. COTTER: Your Honor, will you
11 allow the witness to point to these exhibits or
12 should we just read and refer to it?
13 THE COURT: You will just read the
14 transcript. The jury can see the blowup of the
15 photographs that are contained therein. They
16 are very smart; they can figure it out. Okay?
17 And everyone in the box can clearly
18 see the blowup?
19 (All answered yes.)
20 MS. COTTER: This will be Ken Gresham
21 of my office sitting in as Terrence Saachi.
22 (Mr. Gresham took the stand.)
23 MR. GRESHAM: Good morning, your
24 Honor.
25 THE COURT: Good morning. Ms.

971
Proceedings
1 Cotter, why don't you give the date of the EBT.
2 MS. COTTER: This examination before
3 trial of Terrence Saachi was taken on
4 August 18, 1997.
5 May I proceed?
6 THE COURT: Yes.
7 "QUESTION: Please state your name and
8 address for the record.
9 "ANSWER: Terrence Saachi, 30 Florence
10 Avenue, Freeport, New York 11520.
11 "QUESTION: What is your date of birth,
12 please?
13 "ANSWER: August 4, 1921.
14 "QUESTION: Can you give me your
15 educational background?
16 "ANSWER: Elementary school, eighth grade,
17 that's all.
18 "QUESTION: Were you ever employed by
19 National Equipment Corporation?
20 "ANSWER: I was employed by Union Standard
21 which is a part of National Equipment.
22 "QUESTION: When were you hired?
23 "ANSWER: 1947.
24 "QUESTION: What was your position at that
25 time?
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Proceedings
1 "ANSWER: Helper.
2 "QUESTION: What is the business of Union
3 Standard or National Equipment Corporation?
4 "ANSWER: Rebuild used machinery and sell
5 used machinery.
6 "QUESTION: Did there come a point in time
7 when your position changed?
8 "ANSWER: I became foreman before I
9 retired.
10 "QUESTION: Do you recall what -- do you
11 recall that date?
12 "ANSWER: Pardon?
13 "QUESTION: Do you recall the date that you
14 became foreman?
15 "ANSWER: I don't get that question.
16 "QUESTION: When did you become foreman?
17 "ANSWER: I would say it was about five
18 years -- about '52, 1952.
19 "QUESTION: What were your responsibilities
20 and duties as foreman?
21 "ANSWER: Supervise the repairing of the
22 machinery that we were selling.
23 "QUESTION: Did you have anybody under your
24 supervision?
25 "ANSWER: Yes.
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Proceedings
1 "QUESTION: How many people?
2 "ANSWER: Well, it varied. The most I
3 would say is about 15.
4 "QUESTION: What were their duties and
5 responsibilities?
6 "ANSWER: They were between welders,
7 mechanics, electricians.
8 "QUESTION: Was there a specific procedure
9 that was used when you would recondition
10 machinery?
11 "ANSWER: Well, if something was worn you
12 replaced it. You had to get the machine
13 functioning correctly and doing what it was
14 supposed to do.
15 "QUESTION: Would you put in any safety
16 mechanisms?
17 "ANSWER: All safety regulations as far as
18 what the machine required, we put on."
19 MS. COTTER: At this point at the
20 deposition photographs were marked as Exhibit A
21 for identification.
22 "QUESTION: Do you recognize this piece of
23 equipment?
24 "ANSWER: Well, I don't know if it's the
25 same one, but I have seen machinery of this

974
Proceedings
1 type. I don't know if this is the same.
2 "QUESTION: Of that type?
3 "ANSWER: Of that type.
4 "QUESTION: What would you recognize that
5 to be, that type of machinery?
6 "ANSWER: Well, I see the name Tonnaer
7 here. I see that it is a double-armed mixer.
8 That's about all I can see to recognize. I see
9 the packing glands are there in the right place
10 so I know it's a Tonnaer.
11 "QUESTION: Would you recognize that to be
12 a machine that was reconditioned by Union
13 Standard?
14 "ANSWER: No, I couldn't truthfully say
15 that.
16 "QUESTION: Have you reconditioned
17 double-armed Tonnaer mixers before?
18 "ANSWER: Yes.
19 "QUESTION: How would you do that?
20 "ANSWER: Well, the first thing we would
21 start with we would check the gearing, that
22 there was no wear in the gearing. Next thing
23 we would do, check the agitator shafts, we
24 would make sure there was no wear in there. We
25 would check the drives to see the gears, the

975
Proceedings
1 drivers, whether they are gear or chain, that
2 they weren't worn. That's what we would check
3 first.
4 Then, in putting the machine together, we
5 would check for whatever safety equipment was
6 called for. Next we would take the motors
7 apart. We would send them to our own
8 electrical supplier, Dealers Electric. He
9 would reservice all these motors. We didn't
10 service the motors. We wouldn't reconnect
11 them --"
12 THE COURT: Excuse me. "He would
13 reconnect them," is that what it says?
14 MR. GRESHAM: That's correct.
15 "ANSWER: He would reconnect them --"
16 MR. GRESHAM: My apologies, your
17 Honor.
18 "ANSWER: "-- rewire them, anything that
19 was necessary.
20 "QUESTION: Would you use the two-button
21 panel as is shown in the exhibit?
22 "ANSWER: Well, see this is a little
23 confusing. Because this button here is a
24 button --"
25 MS. COTTER: By counsel at the

976
Proceedings
1 deposition, "He is indicating the red button on
2 the photograph."
3 "ANSWER: See the red button is not a
4 dust-proof or explosion-proof button. We would
5 never put that on anything that was handling
6 flour or stuff like that. This --"
7 MS. COTTER: By counsel that was at
8 the deposition, "This is the lower panel he is
9 referring to."
10 "ANSWER: This is the up or down button to
11 lower this up or down. Now, we would never put
12 anything like that because there is no jog
13 button here."
14 MS. COTTER: By Mr. Bersin who was at
15 the deposition, "Jog did you say?"
16 "ANSWER: Yes. You can't tell what they're
17 using these buttons for --
18 "QUESTION: What is a jog button?
19 "ANSWER: It is for the sole purpose when
20 this machine is in this position --
21 "QUESTION: When it is tilted?
22 "ANSWER: When it's tilted. You see when
23 this is in the tilt position, you have a switch
24 in the back on here when the machine rises.
25 This switch, it disconnects the drive

977
Proceedings
1 mechanism. In other words, when the machine is
2 in this position even if you push these buttons
3 it will not run.
4 "QUESTION: So it can't be tilted and
5 running at the same time?
6 "ANSWER: And running at the same time.
7 The only way you can do it is with the jog
8 button, but it's only a momentary impulse. The
9 minute you touch it, it releases. Do you get
10 that? So they can clean these agitators or
11 empty the machine.
12 "QUESTION: And there is no jug button
13 shown?
14 "ANSWER: I don't see, but -- see, I don't
15 see how these are wired. But I don't see no
16 button that's a jog button. I see here an up
17 and down button."
19 the deposition, "So if this is photo A, B and
20 C, then the witness was just referring in his
21 testimony and pointing to Exhibit B when he was
22 explaining the button systems. And then he was
23 referring to Exhibit A when he was talking
24 about in the back of the vertical piece, he was
25 referring to Exhibit A at that time."

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Proceedings
1 "QUESTION: In Defendant's Exhibit B there
2 is no jog button shown to your knowledge?
3 "ANSWER: No, I don't see no jog button.
4 This is just start and stop.
5 "QUESTION: And that is the upper panel
6 with the green and red buttons?
7 "ANSWER: Right.
8 "QUESTION: The lower panel with the two
9 black buttons?
10 "ANSWER: This here would be the up and
11 down for the tilt.
12 "QUESTION: For the tilt?
13 "ANSWER: To my knowledge, but I don't see
14 how these are wired. I can't tell you without
15 seeing the wiring.
16 "QUESTION: And Exhibit --
17 "ANSWER: Now, see, these show two more
18 buttons here.
19 "QUESTION: Defendant's Exhibit A, this is
20 in a tilt position?
21 "ANSWER: Yes.
22 "QUESTION: Now in terms of the wiring, can
23 you tell anything about the wiring from any of
24 these pictures?
25 "ANSWER: This is a little confusing here

979
Proceedings
1 because here they show the switch and on this,
2 you see what I'm saying? Here they show the
3 machine.
4 "QUESTION: Exhibit A?
5 "ANSWER: Yes. Now, here they show a
6 switch which should be here, but I don't see it
7 on this picture.
8 "QUESTION: So you are saying that there is
9 a panel in Exhibit B that you don't see in
10 Exhibit A?
11 "ANSWER: Yes. There is a push button here
12 which I don't --
13 "QUESTION: It's right there. It's a
14 close-up picture.
15 "ANSWER: Oh, yes, all right.
16 "QUESTION: What is it a close-up picture
17 of, B?"
18 MS. COTTER: At that time Mr. Deffina
19 stated, Mr. Deffina who was also an attorney at
20 the deposition, stated, "So B is a close-up of
21 A?"
22 "ANSWER: I see it now, thank you. See
23 there is a button here.
24 "QUESTION: There is a panel on the side?
25 "ANSWER: Now this push button may be up

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Proceedings
1 and down. I don't know, I can't see.
2 "QUESTION: So you are not familiar with
3 this wiring?
4 "ANSWER: Not the way they have it wired
5 there.
6 "QUESTION: Now, when the machines were
7 reconditioned at Union Standard, would you
8 inspect all of them when they were sent --
9 before they were sent out for delivery?
10 "ANSWER: If I worked on them, yes, I
11 would.
12 "QUESTION: Who else would work on them
13 besides you?
14 "ANSWER: The start, the jog, the tilt
15 would all be worked.
16 "QUESTION: Who else would inspect
17 machinery before the machines were sent out to
18 customers?
19 "ANSWER: Mr. Greenberg, Arthur Greenberg,
20 he's one of the bosses. And I would be in
21 charge. This used to be about 15, 20 years ago
22 this machine here.
23 "QUESTION: So just yourself and
24 Mr. Greenberg?
25 "ANSWER: That's right. If it was later

981
Proceedings
1 than that, then we had an electrician, but he
2 is not with the company. He died a long time
3 ago, but that would be my responsibility at
4 that time.
5 "QUESTION: And you don't recognize this
6 machinery to be reconditioned in a --
7 "ANSWER: No, I can't say that I do.
8 "QUESTION: -- in the fashion that you were
9 used to at National Equipment?
10 "ANSWER: No.
11 "QUESTION: So you don't recognize the
12 Tonnaer mixer depicted here in Defendant's
13 Exhibits A and -- A through E as being
14 reconditioned in the fashion that you would at
15 National Equipment Corporation?
16 "ANSWER: That's right.
17 "QUESTION: When did you retire?
18 "ANSWER: 1986.
19 "QUESTION: Are you familiar with the
20 Tonnaer machinery?
21 "ANSWER: I am familiar with it.
22 "QUESTION: Yes.
23 "ANSWER: Not every one, but I'm familiar
24 with this particular one.
25 "QUESTION: And this particular one you

982
Proceedings
1 have given a designation, a double arm?
2 "ANSWER: Yes, from what I could see on it.
3 "QUESTION: What did you call it again, a
4 double-arm mixer?
5 "ANSWER: Yes, I can't see a detailed
6 picture of the agitator so I can't tell you
7 exactly what it is, but it's a double-arm
8 mixer.
9 "QUESTION: How is it that it's called a
10 double-arm mixer?
11 "ANSWER: Because it has two mixing arms.
12 "QUESTION: When say it has two mixing arms
13 you pointed to Exhibit C; is that correct?
15 "QUESTION: And there appears to be a grate
16 and then underneath the grate there are two
17 arms?
18 "ANSWER: Two arms.
19 "QUESTION: Can you tell us what, as far as
20 you know, what this double arm mixer was used
21 for?
22 "ANSWER: Well, I really can't get a good
23 look at the agitator. I don't know if it's a
24 mixing agitator or a creaming and rubbing
25 agitator.
983
Proceedings
1 "QUESTION: When you say you can't get a
2 good look at the agitator, you are referring to
3 which picture?
4 "ANSWER: These two pieces under here that
5 does the actual mixing.
6 "QUESTION: And in order to make a
7 determination you would have to have a better
8 look at the two arms?
9 "ANSWER: Of these two mixing arms.
10 "QUESTION: What would this particular
11 mixer be used for? You said that it would
12 be --
13 "ANSWER: It could be used
14 pharmaceutically. It could be for bread, for
15 candy. It could be used for anything, but
16 these arms look to me like something I have
17 never seen and I would like to get a better
18 picture before I tell you what it is.
19 "QUESTION: Right. I understand.
20 "Did the agitator rotate in a different way
21 between the various functions that you just
22 mentioned between the candy, the
23 pharmaceutical?
24 "ANSWER: The agitators all function the
25 same direction, the same. The only thing is

984
Proceedings
1 the speed may vary. One may go faster than the
2 other one or slower. The idea of the agitator
3 they come in and just mix everything together.
4 "QUESTION: What about to mix dough, what
5 kind of agitator would be utilized?
6 "ANSWER: Well, that's another thing. You
7 have standard agitators which is how would I
8 call them; you have a creaming and rubbing
9 agitator; and you have a standard dough
10 agitator, which is usually basic, could be used
11 for most anything, anything that requires
12 mixing.
13 "QUESTION: And as far as you know, did
14 Tonnaer make the standard dough double-arm
15 mixer?
16 "ANSWER: Yes. Tonnaer usually used to
17 make their machineries for chewing gums or hard
18 stuff, you know, like candy, hard candy. But
19 this you could see was not a well-kept machine
20 here. I see flour, flour all over it and I see
21 here the motor has been disconnected.
22 "QUESTION: And you pointed to a particular
23 photograph. When you say the motor has been
24 disconnected, what number are you looking at
25 here?
985
Proceedings
1 "ANSWER: I could see here this is not in a
2 splice box.
3 "QUESTION: That's referring to Defendant's
4 F, that motor is there to be used -- that motor
5 there is used for what particular function on
6 that machine, to the best of your knowledge?
7 "ANSWER: This looks like the main driver
8 motor.
9 "QUESTION: Now, you left you say in 1986.
10 Were you aware of where any of these products
11 were eventually shipped to?
12 "ANSWER: No, no idea.
13 "QUESTION: Do you know if Ferrara Brothers
14 purchased any equipment from National Equipment
15 or Union Standard as far as you know?
16 "ANSWER: Would you repeat that?
17 "QUESTION: As far as you were aware, did
18 you know whether or not any of the equipment
19 that you refurbished was sold to Ferrara
20 Brothers?
21 "ANSWER: No. I know we sold them some
22 equipment, but I don't know what equipment was
23 sold to Ferrara Brothers.
24 "QUESTION: How was it that you know some
25 equipment was sold to Ferrara brothers?

986
Proceedings
1 "ANSWER: How do I know? Because we sold
2 them a cutting machine, that's all I know
3 about.
4 "QUESTION: Who at Union Standard or
5 National Equipment was responsible for the
6 sales of that equipment?
7 "ANSWER: That I couldn't tell you.
8 "QUESTION: You mentioned an Arthur
9 Greenberg was the owner, correct?
11 "QUESTION: Did he have a salesman as far
12 as you were aware that sold equipment?
13 "ANSWER: He had quite a few salesmen.
14 "QUESTION: Do you recall any of the names
15 of the salesmen offhand?
16 "ANSWER: But I don't know at what time
17 this machine was sold.
18 "QUESTION: I understand that. Let's just
19 say, well, you left in 1986, correct?
20 "ANSWER: Yes.
21 "QUESTION: Looking at that machine, can
22 you approximate its age?
23 "ANSWER: No, I really -- I really couldn't
24 because I have no idea when Tonnaer started to
25 use this type name plate. I couldn't tell you.

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Proceedings
1 There should be a date on here.
2 "QUESTION: You indicated that the red and
3 green button that is depicted in photograph
4 Defendant's Exhibit B, you said that you looked
5 at that?
6 "ANSWER: This button, yes.
7 "QUESTION: That would be the top set of
8 buttons in that photograph, you looked at that
9 and you said that based upon your observations
10 you don't believe that National Equipment put
11 those buttons on that kind of machine.
12 "ANSWER: No --"
13 MR. GRESHAM: I will start over.
14 "ANSWER: No, it does not look like an
15 explosion-proof button.
16 "QUESTION: Why don't you explain what an
17 explosion-proof button looked like and how it
18 would differ from the button you see here?
19 "ANSWER: Well, you see the button bottoms
20 these two bottoms, these two buttons, these are
21 dust-proof and explosion-proof buttons.
22 "QUESTION: That's pointing to the bottom
23 set of buttons in Exhibit B.
24 "ANSWER: They are dust-proof.
25 "QUESTION: How in looking at them can you

988
Proceedings
1 determine whether or not they are dust-proof?
2 "ANSWER: They have a sealed housing. You
3 have a gasket behind here that no mechanism or
4 flour can get behind and cause an explosion.
5 "QUESTION: Looking at the top two buttons,
6 the green and the red, how do they appear to
7 you in the photograph?
8 "ANSWER: To me, it looks like the shield
9 just goes on there with two screws, that's all.
10 There is no seal, no way to stop the water or
11 flour from getting into the electrical part of
12 the machine.
13 "QUESTION: Now, did National Equipment or
14 Union Standard, did they put those buttons in
15 place or did they come with the machines that
16 you refurbished?
17 "ANSWER: See, ordinarily, the machine
18 itself has a location for the buttons. You can
19 see these are the original locations here. The
20 operating side of the machine is on the right,
21 the push buttons are on the right."
23 the deposition, "The witness is pointing to
24 Exhibit B when he made that statement."
25 "QUESTION: So based upon your observations

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Proceedings
1 of this photograph you believe that that was
2 the original position of the buttons?
3 "ANSWER: The original buttons, but I don't
4 believe this was the original button.
5 "QUESTION: What leads you to believe that
6 you don't believe these were the original
7 buttons?
8 "ANSWER: You go back to this picture which
9 I can't identify, this switch of this button
10 here.
11 "QUESTION: That's depicted in Defendant's
12 E?
13 "ANSWER: Yes.
14 "QUESTION: Go ahead.
15 "ANSWER: I can't identify that button and
16 I can't identify these two buttons here because
17 this would be the way -- this would be on a
18 panel. These buttons would be on a panel with
19 everything on one side and I can't see an
20 operator going from one side of the machine to
21 the other side to function."
22 MS. COTTER: At the bottom of
23 page 26.
24 "QUESTION: Now, looking at Exhibit C there
25 appears to be in that photograph like a grate

990
Proceedings
1 above the agitators?
2 "ANSWER: Yes.
3 "QUESTION: What would that be called?
4 "ANSWER: Well, in this particular type
5 they used to call that a loading grate. The
6 purpose of this is when the operator drops the
7 flour into the machine, he drops it through
8 that grate so that -- so the bag or anything,
9 if it slips in his hand, it would not go into
10 the machinery.
11 "QUESTION: Did that serve a function as a
12 guard?
13 "ANSWER: It could function as a guard. On
14 some machines they have it that it bypasses the
15 stop here. They have this guard with a weight.
16 You see now when the machine is open, you see,
17 not the tilt, the guard is closed, the guy
18 would have to lift it up.
19 "On some machines they put a counterweight
20 with another switch that when the machine
21 lowers, this goes up by it itself, but the
22 machine will not function. This guard is up.
23 It's a double safety.
24 "QUESTION: Do you know what an interlock
25 mechanism is?
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Proceedings
2 "QUESTION: When you refurbished machines,
3 let's assume that you refurbished similar
4 machines, but you don't know about this
5 machine. Did you refurbish them with an
6 interlock device?
7 "ANSWER: We refurbish with the interlock,
8 we always did, on the tilt of the bowl. The
9 minute that bowl left the horizontal position,
10 it just opened about an eighth of an inch, then
11 that machine was interlocked and you could not
12 move these agitators. The machine would stop
13 dead.
14 It would only be controlled by the up and
15 down switch, but you could not have moved the
16 agitator. The agitator will not move unless
17 you push the jog switch that would give it just
18 a pause, a fraction of an inch of time when you
19 push the button.
20 "QUESTION: What about when the agitators
21 were operating and that loading brake was in
22 place. If you lifted up the loading brake,
23 would the agitators continue agitating?
24 "ANSWER: No. The way I would do it, I
25 would never leave an agitator running where a

992
Proceedings
1 man could put his hands or drop a bag in this.
2 "QUESTION: So you are saying that if you
3 lifted up the brake, the interlock would stop
4 the agitators?
5 "ANSWER: The agitation of the machine. If
6 you tilt it, if you tilt the machine, the other
7 tilt here would take over and would stop the
8 machine. At no time will this machine run, if
9 it was wired correctly, at no time will this
10 machine run if this was open or this machine
11 was tilted."
12 MS. COTTER: By Mr. Deffina who was
13 counsel at the deposition, "Except for the jog
14 switch?
16 "QUESTION: After you left in 1986, do you
17 know who took over your position at National
18 Equipment?
19 "ANSWER: No, I really don't.
20 "QUESTION: Where was your facility --
21 where was your facility where you did the
22 refurbishing located?
23 "ANSWER: Well, it was in Brooklyn and then
24 they moved to the Bronx.
25 "QUESTION: When was it that it moved to

993
Proceedings
1 the Bronx?
2 "ANSWER: About '62, '63, around that time.
3 "QUESTION: Did you have responsibilities
4 for every single refurbished double-arm mixer
5 that would have left that facility between the
6 early 1950s through 1986?"
7 MS. COTTER: Mr. Deffina objected.
8 "ANSWER: I really can't say that because
9 we had an electrician that was really -- but I
10 don't remember the time that he started. We
11 had an electrician that would be in charge of
12 the electrical part and I would be in charge of
13 the mechanical part, but I don't remember the
14 time frame.
15 "QUESTION: But you say he passed away well
16 before 1986 --
17 "ANSWER: Well before. Well before.
18 "QUESTION: Did anyone at National
19 Equipment or Union Standard give you direction
20 in terms of how the machine was going to be
21 utilized?
22 "ANSWER: Well --"
23 MS. COTTER: Mr. Deffina at the
24 deposition objected.
25 "ANSWER: The basic -- because the machine

994
Proceedings
1 is a machine, how could I say? If you bought a
2 dough mixer, you know it was going to be bought
3 for dough or chemicals.
4 "QUESTION: Did you receive any material
5 from the manufacturer like Tonnaer, did you
6 receive their instruction booklet or their
7 design booklets with respect to the machines
8 that you refurbished?
9 "ANSWER: Actually, I don't remember ever
10 refurbishing a Tonnaer machine, you know,
11 rebuilding one because when we first come into
12 Tonnaer, they were just chewing gum machines
13 that they got. They were made for chewing gum
14 and they were brand-new machines, they weren't
15 rebuilt machinery. I just handled rebuilt
16 machinery.
17 "QUESTION: Did Union Standard handle any
18 new machinery from Tonnaer that you are aware
19 of?
20 "ANSWER: The only thing that we did with
21 new machinery from Tonnaer was to check them
22 out and send them to the people whoever bought
23 them.
24 "We would check the electrical volt, the
25 machine and operation. We would check all the

995
Proceedings
1 circuits, all the limit stops that the machine
2 was functioning. Now, we might have rebuilt
3 one or two, but not that I could really say.
4 "QUESTION: What was the name of the
5 dealer? I think you referred to one of the
6 dealers that had responsibility with respect to
7 the motors.
8 "ANSWER: Dealers Electric I think the name
9 of it was.
10 "QUESTION: I didn't get it.
11 "ANSWER: Dealers Electric.
12 "QUESTION: Dealers Electric?
13 "ANSWER: They used to do all our -- motor
14 work.
15 "QUESTION: Where were they located?
16 "ANSWER: The Navy Yard building someplace
17 in Brooklyn.
18 "QUESTION: Do you know if they were in
19 existence in 1986 when you left?
20 "ANSWER: Yes.
21 "QUESTION: Did you have any documentation
22 that you had to fill out when you did any work
23 on a machine?
24 "ANSWER: No.
25 "QUESTION: Did you know where these

996
Proceedings
1 machines were purchased from that you worked
2 on?
3 "ANSWER: No.
4 "QUESTION: Did you have a supervisor that
5 you reported to after you became the foreman in
6 the '50s?
7 "ANSWER: No. We had the Greenbergs, they
8 were all engineers, Bob Greenberg and Richard
9 Greenberg were engineers. If I had any
10 problems I would run to them. They would
11 settle the problems. When it came to
12 technicalities, not to the repairing of the
13 machine."
14 MS. COTTER: That concludes the
15 portion we will read of the deposition.
16 THE COURT: Okay. Anything from
17 either counsel with regard to the EBT?
19 MS. SCOTTO: No, your Honor.
20 THE COURT: Thank you very much. You
21 may step down.
22 MR. GRESHAM: Thank you, your Honor.
23 (Mr. Gresham left the stand.)
24 THE COURT: Approach, please.

997
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1 held off the record at the bench, in the
2 presence of the Court and all counsel and
3 out of the hearing of the jury.)
5 does anyone need a quick break before we start
6 reading any more EBT's? No one? Okay, then
7 let's proceed.
8 MR. DURST: Your Honor, I would like
9 to read now from the deposition of Edward
10 Scoppa taken on May 2, 1997.
12 Ladies and gentlemen, we are now back
13 to the plaintiff's case. And this is part of
14 the plaintiff's case in chief. All right. And
15 that was May 2, right?
16 MR. DURST: Yes. Examination before
17 trial of third-party defendant, Ferrara Foods
18 and Confections, Inc. by Edward Scoppa taken on
19 May 2, 1997.
20 THE COURT: Just for the record, I
21 would like you to read out the pages and the
22 lines.
24 Page 6, line 4.
25 THE COURT: Just for the record from

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1 which line to which line?
2 MR. DURST: Line 4 through line 9.
3 "QUESTION: What is your current position?
4 "ANSWER: Vice-president of Ferrara Foods
5 and Confections, Inc.
6 "QUESTION: How long have you been in that
7 position?
8 "ANSWER: Approximately 12 years."
9 Skipping over now to page 8, lines 9
10 through 14.
11 "QUESTION: Describe your educational
12 background just briefly.
13 "ANSWER: I'm a high school graduate and I
14 had two years of college.
15 "QUESTION: In what area did you study?
16 "ANSWER: Electronic technology."
17 Skipping over to page 13, lines 14 through
18 23.
19 "QUESTION: Were you familiar with the
20 machine when it was at the Grand Street
21 location?
22 "ANSWER: Yes.
23 "QUESTION: When was that machine first
24 purchased?
25 "ANSWER: Probably somewhere in the late

999
Proceedings
1 '70s.
2 "QUESTION: Who was it purchased from?
3 "ANSWER: We are not 100 percent sure at
4 this point. We can't find any records."
5 Skipping to 15 line 14, through 16 line
6 12.
7 "QUESTION: Have you spoken to anyone since
8 the time of the accident concerning who Ferrara
9 had purchased that particular machine from?
10 "ANSWER: I believe someone came asking
11 some questions at some point in time.
12 "QUESTION: Do you recall telling them that
13 the machine had been purchased from National
14 Equipment Company on Bruckner Boulevard in the
15 Bronx?
16 "ANSWER: I believe yes. At that time we
17 did purchase a number of pieces of equipment
18 from National. So I just assumed this was one
19 of the pieces that came, but we couldn't find
20 any records.
21 "QUESTION: But you do not maintain
22 purchase records going back to 1978 to your
23 knowledge?
24 "ANSWER: No, we don't.
25 "QUESTION: Do you maintain a computer

1000
Proceedings
1 system with invoicing and purchasing and
2 payments, that kind of thing?
3 "ANSWER: We do now, but it wouldn't cover
4 1978. I don't believe we had a computer back
5 in 1978."
6 Page 19, line 8 through 16.
7 "QUESTION: Do you know what the name of
8 the manufacturer is?
9 "ANSWER: It's a foreign name, Scandinavian
10 name. There is a little plaque on the machine.
11 I really don't recall the name. It started
12 with a T, I believe Tonnar or Toner.
13 "QUESTION: Tonnar, T-O-N-N-A-R?
14 "ANSWER: Right."
15 Page 21 line 7, through 22 line 15.
16 "QUESTION: Was it being used to mix dough
17 in the Grand Street location?
18 "ANSWER: No, it wasn't.
19 "QUESTION: What was it used for at the
20 Grand Street location?
21 "ANSWER: It wasn't being used.
22 "QUESTION: When was it first being used?
23 "ANSWER: It first started being used, it
24 first started being used -- correct that -- at
25 the Grand Street location approximately a year

1001
Proceedings
1 before we moved the operation to Brooklyn. But
2 primarily there was a different mixer involved
3 in the cannoli shell manufacturing.
4 "QUESTION: Prior to what, about 1990?
5 "ANSWER: Approximately.
6 "QUESTION: What was the machine being used
7 for, if anything, after it was initially
8 purchased?
9 "ANSWER: It was not used. It was sitting
10 in storage.
11 "QUESTION: Where was it being stored?
12 "ANSWER: At the Grand Street location.
13 "QUESTION: Was there any reason it was not
14 being used?
15 "ANSWER: Not that I can recall.
16 "QUESTION: So it sat unused for
17 approximately ten or twelve years?
18 "ANSWER: Approximately, yes.
19 "QUESTION: Do you know how much was paid
20 for the machine approximately?
21 "ANSWER: Somewhere around between 5 and
22 $8,000 approximately based on what the value
23 is, not that I know exactly what we paid."
24 Page 24, lines 14 through 23.
25 "QUESTION: Do you know if the machine came

1002
Proceedings
1 with a cover when it was first purchased?
2 "ANSWER: I believe so.
3 "QUESTION: Do you know if that cover, when
4 it is lifted, automatically turns off the power
5 to the machine?
6 "ANSWER: No, it does not.
7 "QUESTION: Did it ever to your knowledge?
8 "ANSWER: No. I remember that fact that it
9 never did."
10 Page 25, line 11.
11 "QUESTION: Do you know if the machine when
12 it arrived had any electrical circuits to turn
13 off the cover when it was lifted?
14 "ANSWER: No, it did not.
15 "QUESTION: You have some familiarity with
16 electrical design; is that correct?
17 "ANSWER: Yes, I do.
18 "QUESTION: Do you know how this cover is
19 installed on the machine attached to the
20 machine?
21 "ANSWER: I believe there is a rod going
22 through the top and it hinges at that point.
23 "QUESTION: And there are no electrical
24 devices hooked up with that rod?
25 "ANSWER: None whatsoever."

1003
Proceedings
1 Page 26, line 13 through 25.
2 "QUESTION: No, no, I'm just talking about
3 in general. What would you observe and what
4 the operator would observe with regard to how
5 the machine functions?
6 "ANSWER: The machine man has two
7 functions. There are two motors that I recall,
8 one motor controlled the mixing blades, the
9 other motor controlled the dump of the pot, the
10 mixing pot. Each motor is independent. I
11 believe you can tilt or dump the machine while
12 the beating motor is still going, that is, I
13 guess the reason to extract the dough from the
14 machine automatically and that's it."
15 Page 32 line 2 through 11.
16 "QUESTION: Do you know if on the date of
17 this incident, the motor that tilted the dough
18 mixer was functioning properly?
19 "ANSWER: I believe it was.
20 "QUESTION: From what do you garner that
21 belief, direct observation or were you told by
22 someone that it was?
23 "ANSWER: I was told that it was.
24 "QUESTION: By who?
25 "ANSWER: Miguel Rogel."

1004
Proceedings
1 Page 35, Line 7 through 25.
2 "QUESTION: Is there anything that leads
3 you to believe that the cover was attached to
4 the machine at the time of the accident? And
5 if so, what leads you to believe that?
6 "ANSWER: I believe it was attached because
7 it's an integral part of the machine and it
8 belongs on it.
9 "QUESTION: Besides the fact that it
10 belongs on it, is there anything else that
11 leads you to believe that the cover was
12 attached?
13 "That's the only thing that leads you to
14 believe that?
15 "ANSWER: Yes.
17 your Honor.
18 THE COURT: Any other counsel want to
19 use this opportunity to refer to that or not?
20 MS. SCOTTO: Yes, your Honor. There
21 was just one small part, page 17 line 11
22 through page 18 line 4.
23 THE COURT: 17 line 11 through 18
24 line?
25 MS. SCOTTO: 4.
1005
Proceedings
1 THE COURT: One second. Okay.
2 MS. SCOTTO: May I, your Honor?
3 THE COURT: Yes.
4 MS. SCOTTO: "QUESTION: When this
5 machine was purchased, was it purchased new or
6 used?
7 "ANSWER: I believe it was used.
8 "QUESTION: That is based on your
9 recollection of the machine when it first
10 arrived?
11 "ANSWER: Yes.
12 "QUESTION: Do you remember when it first
13 arrived at the plant?
14 "ANSWER: Not really, no.
15 "QUESTION: I do not mean the date, I mean
16 do you have a recollection of the machine being
17 installed on the production line?
18 "ANSWER: In 1978 that line did not exist.
19 The product that this machine currently makes
20 was made on a smaller scale -- at a smaller
21 scale. This machine was probably purchased
22 with the envision of upgrading the system to
23 the way we have it today."
24 Thank you, your Honor.
25 THE COURT: Okay.

1006
Proceedings
1 MS. COTTER: Your Honor, on my case I
2 would like to read portions of Edward Scoppa's
3 transcript as well.
4 THE COURT: Do you want to do it now
5 or later?
6 MS. COTTER: I can do it now.
7 THE COURT: Okay.
8 MS. COTTER: Actually, your Honor,
9 it's probably at least as long as Mr. Durst
10 just read testimony. So perhaps if the
11 plaintiff wants to rest now and I can read it
12 thereafter?
16 Court and all counsel.)
18 this is where your super duper braininess comes
19 in effect. Once again, we are going out of
20 turn and we are get getting Ms. Cotter reading
21 on her case portions of the EBT. Since it's
22 the same witness it just might be better flow
23 for you to know which witness we are referring
24 to.
25 Okay, Ms. Cotter.

1007
Proceedings
1 MS. COTTER: As you said, Judge, it's
2 the same witness, Edward Scoppa, the same
3 deposition of May 2, 1997.
4 "QUESTION: State your name and address for
5 the record.
6 "ANSWER: Edward Scoppa, 775 Maple Street,
7 New Milford, New Jersey 07646.
8 "QUESTION: And you are familiar with that
9 accident --"
10 THE COURT: Ms. Cotter, I'm going to
11 ask you please just as I have asked other
12 counsels to reference the page and line before
13 you start. This is basically also for the
14 purposes of the record.
15 MS. COTTER: Page 5, lines 19 and 20.
16 Beginning on line 19.
17 "QUESTION: And you are familiar with that
18 accident to Mr. Rodriguez, are you?
19 "ANSWER: Basically familiar.
20 "QUESTION: How did you gain any
21 familiarity with regard to how that accident
22 occurred?"
23 Going on to page 6 the entire page.
24 "ANSWER: Listening to a verbal report
25 primarily by the supervisor of the factory.

1008
Proceedings
1 "QUESTION: What is your current position?
2 "ANSWER: Vice-president of Ferrara Foods
3 and Confections, Inc.
4 "QUESTION: How long have you been in that
5 position?
6 "ANSWER: Approximately 12 years.
7 "QUESTION: What are your duties in that
8 position, just in general?
9 "ANSWER: General overseeing of certain
10 manufacturing, general office work.
11 "QUESTION: Let's go back to March of 1995,
12 that year. Approximately how many employees
13 did Ferrara Brothers have at that time, just
14 roughly?
15 "ANSWER: The entire operation? Probably
16 around 35 employees.
17 "QUESTION: Was Mr. Cirro Rodriguez an
18 employee of Ferrara Brothers at that time?
19 "ANSWER: Yes.
20 "QUESTION: Do you know how long he had
21 been employed there?
22 "ANSWER: No, I don't.
23 "QUESTION: What is the business of Ferrara
24 Brothers?"
25 MS. COTTER: This is page 7 now

1009
Proceedings
1 beginning at line 2 through 8.
2 "QUESTION: What is the business of Ferrara
3 Brothers?
4 "ANSWER: Ferrara Foods is a retail store
5 on Grand Street, at the Grand Street location.
6 "QUESTION: In Manhattan?
7 "ANSWER: In Manhattan and we have a small
8 manufacturing facility in Brooklyn."
9 MS. COTTER: Going down to lines 21
10 through 25 on page 7.
11 "QUESTION: And it utilizes various
12 machines such as dough mixers at the plant?
13 "ANSWER: Yes.
14 "QUESTION: Approximately how many people
15 work at that factory in Brooklyn?"
16 Going on to page 8 lines 2 through 8.
17 "ANSWER: Approximately 18 people.
18 "QUESTION: Do you have any engineers on
19 the staff at that facility in Brooklyn?
20 "ANSWER: No.
21 "QUESTION: Do you have any engineers on
22 the staff at any portion of the company?
23 "ANSWER: No."
24 MS. COTTER: Page 9, beginning at
25 line 5 through line 18.

1010
Proceedings
1 "QUESTION: Do you have a maintenance
2 department?
3 "ANSWER: Yes.
4 "QUESTION: How many people does that
5 consist of?
6 "ANSWER: Currently, three people.
7 "QUESTION: Let's go back to March of 1995.
8 How many people were in that department at that
9 time?
10 "ANSWER: Probably about the same.
11 "QUESTION: Were their primary
12 responsibilities to maintain the equipment used
13 in the food manufacturing process?
14 "ANSWER: Yes."
15 MS. COTTER: Page 10, lines 21 and 22
16 and lines 25.
17 "QUESTION: Who was in charge of the
18 facility in Brooklyn in March of 1995?
19 "ANSWER: Miguel Rogel."
20 Page 11 lines 2 through 9.
21 "QUESTION: Is he still employed with the
22 company?
23 "ANSWER: Yes, he is.
24 "QUESTION: Did he have a title?
25 "ANSWER: Manager.
1011
Proceedings
1 "QUESTION: Do you know how long
2 Mr. Rodriguez had been employed by Ferrara at
3 that time of his accident?
4 "ANSWER: No."
5 MS. COTTER: Page 11 lines 21 through
6 24.
7 "QUESTION: Sir, by the way, were you
8 working out of this factory in Brooklyn or
9 did you work out of the Grand Street
10 address?
11 "ANSWER: Grand Street."
13 "QUESTION: Are you familiar with the
14 machine upon which Mr. Rodriguez was injured?
15 "ANSWER: Yes.
16 "QUESTION: How do you know that machine,
17 did somebody point it out to you that that was
18 where he was injured?
19 "ANSWER: It's the only mixing machine
20 that --"
21 MS. COTTER: Page 13 the entire page.
22 "ANSWER: -- we have on the premises.
23 "QUESTION: How long was that machine --
24 how long has that machine been utilized at that
25 factory?
1012
Proceedings
1 "ANSWER: At that location, that machine
2 was there since we started that building.
3 "QUESTION: When was that?
4 "ANSWER: I believe around 1991.
5 "QUESTION: Was that machine transferred
6 from another location before coming to that
7 particular plant in Brooklyn?
8 "ANSWER: That was in Manhattan on Grand
9 Street.
10 "QUESTION: Were you familiar with the
11 machine when it was at the Grand Street
12 location?
13 "ANSWER: Yes.
14 "QUESTION: When was that machine first
15 purchased?
16 "ANSWER: Probably somewhere in the late
17 '70s.
18 "QUESTION: Who was it purchased from?
19 "ANSWER: We are not 100 percent sure at
20 this point. We can't find any records.
21 "QUESTION: Were you involved in the
22 purchasing of this machine?"
23 MS. COTTER: Page 14, line 2 through
24 13.
25 "ANSWER: No.
1013
Proceedings
1 "QUESTION: Do you know who was?
2 "ANSWER: At that time one of the partners,
3 Anthony Lepore, did quite a bit of the
4 purchasing. I know he purchased a few
5 components for this line and probably that
6 machine as well.
7 "QUESTION: Is he still with the company?
8 "ANSWER: He is deceased.
9 "QUESTION: Did he leave any records at all
10 with regard to the purchase of this machine?
11 "ANSWER: Not that we could find."
12 Going down to lines 23 through 25.
13 "QUESTION: When was the company first
14 created?
15 "ANSWER: In 1892."
17 "QUESTION: Have you spoken to anybody
18 since the time of the accident concerning who
19 Ferrara had purchased that particular machine
20 from?
21 "ANSWER: I believe someone came asking
22 some questions at some period of time.
23 "QUESTION: Do you recall telling them that
24 the machine had been purchased from National
25 Equipment Company on Bruckner Boulevard in the

1014
Proceedings
1 Bronx?
2 "ANSWER: I believe yes, at that time we
4 from National so I just assumed that this was
5 one of the pieces that came, but we couldn't
6 find any records."
8 "QUESTION: Were you with the company back
9 in 1978?
10 "ANSWER: Yes.
11 "QUESTION: What was your position then?
12 "ANSWER: Production vice-president I
13 believe was my title.
14 "QUESTION: So you were the person who was
15 overseeing the production of the food
16 materials; is that correct?
17 "ANSWER: That's correct."
19 "QUESTION: Did you know what machinery was
20 being used to mix dough back in that period of
21 time?
22 "ANSWER: Yes.
23 "QUESTION: When this machine was
24 purchased, was it purchased new or used?
25 "ANSWER: I believe it was used.

1015
Proceedings
1 "QUESTION: That is based on your
2 recollection of the machine when it first
3 arrived?
4 "ANSWER: Yes.
5 "QUESTION: Did you remember when it first
6 arrived at the plant?
7 "ANSWER: Not really, no.
8 "QUESTION: I do not mean the date, I mean
9 do you have a recollection of the machine being
10 installed on the production line?
11 "ANSWER: In 1978 that line did not exist.
12 The product that this machine currently makes
13 was made on a different scale at a smaller --"
15 "ANSWER: "-- smaller scale. This machine
16 was probably purchased with the envision of
17 upgrading the system to the way we have it
18 today.
19 "QUESTION: At that time were there any
20 other companies that you purchased dough mixers
21 from other than National Equipment?"
22 No answer was given and then there is
23 another question by the witness, "In the 1978
24 period?"
25 THE COURT: There was another

1016
Proceedings
1 question by the attorney?
2 MS. COTTER: Yes. Actually, no, I
3 believe it's, I'm sorry, it's by the attorney.
4 "ANSWER: Somewhere during those years
5 Mr. Lepore, he was a notorious auction shopper
6 and he went to many of these equipment
7 auctions. In fact, quite a bit of the
8 equipment that we have at Ferrara was purchased
9 through auctions.
10 "QUESTION: Who sponsored those auctions,
11 do you know?
12 "ANSWER: Various auctioneers that you find
13 in the New York Times.
14 "QUESTION: Where would the equipment come
15 from that was being auctioned?
16 "ANSWER: Where would it come from?
17 "QUESTION: Where with it come from?
18 "ANSWER: Bakeries that went out of
19 business and things like that."
21 "QUESTION: Do you know if this company
22 that manufactured the machine is still in
23 business?
24 "ANSWER: No, I don't know.
25 "QUESTION: Have you ever done any direct

1017
Proceedings
1 business with the manufacturer of that machine?
2 "ANSWER: No.
3 "QUESTION: Do you know what the name of
4 the manufacturer is?
5 "ANSWER: It was a foreign name, a
6 Scandinavian name. There was a little plaque
7 on the machine. I don't really recall the
8 name. It started with a T, I believe Tonnar or
9 Toner.
10 "QUESTION: Tonnar, T-O-N-N-A-R?
11 "ANSWER: Right."
13 "QUESTION: Were you at the scene at the
14 time of the accident?
15 "ANSWER: No, I was not."
17 "QUESTION: At that location on that date
18 how many dough mixing machines did Ferrara
19 have?
20 "ANSWER: One.
21 "QUESTION: Are there any records that
22 Ferrara has as to when that particular mixing
23 machine was purchased?
24 "ANSWER: No.

1018
Proceedings
1 Ferrara --"
2 Page 39 lines --
3 THE COURT: Before you go there,
4 Ms. Cotter. Line 18, "at that location on that
5 date," what was the reference with regard to
6 that date?
7 MS. COTTER: Yes, okay. I will back
8 up a bit and read. Page 38 beginning on
9 line 5.
10 THE COURT: We can stipulate what it
11 refers back to if you want to.
12 MS. COTTER: We can stipulate that it
13 refers back to the date of the accident,
14 March 14, 1995.
15 MS. SCOTTO: So stipulated.
16 MR. DURST: Certainly.
17 MS. COTTER: So beginning at line 18.
18 "QUESTION: At that location how many dough
19 mixing machines did Ferrara have?"
20 The answer, "One."
21 "Are there any records that Ferrara has
22 as --"
23 THE COURT: You are going to have to
24 slow down.

1019
Proceedings
1 Ferrara has as to when that particular mixing
2 machine was purchased?
3 "ANSWER: No.
5 Ferrara --"
7 "QUESTION: "-- has that indicate from who
8 the machine was purchased?
9 "ANSWER: No.
10 "QUESTION: Were you personally involved in
11 the purchase of that machine?
12 "ANSWER: No, I was not."
13 And that concludes the portion I will
14 read.
15 THE COURT: Okay. Thank you.
16 MS. SCOTTO: Your Honor, may we
17 approach for a second?
18 THE COURT: Come up.
21 Court and all counsel.)
22 THE COURT: Ladies and gentlemen, we
23 are going to take a quick break. Everyone
24 please don't discuss the case among yourselves.
25 Don't let anyone else discuss it with you in

1020
Proceedings
1 your presence. If anyone attempts to do so,
2 please inform the Court. Please don't discuss
3 the case with any parties or witnesses.
4 Let's make it ten minutes.
6 THE COURT: Before we took a break,
7 you had requested at side bar to be allowed to
8 call a witness, Ms. Scotto.
9 MS. SCOTTO: Yes, your Honor. I
10 requested to be able to call a paralegal from
11 my office who will testify that he made efforts
12 to speak with Ed Scoppa and to have him come to
13 the trial and Ed Scoppa refused.
14 THE COURT: All right. That you are
15 doing in your case now, right?
16 MS. SCOTTO: Yes, your Honor.
17 THE COURT: Because your paralegal is
18 here?
19 MS. SCOTTO: He is here, your Honor.
20 THE COURT: Any objection to calling
21 a witness out of turn after we have called so
22 many witnesses out of turn?
23 MS. COTTER: No.
25 THE COURT: Okay.

1021
Proceedings
2 All rise.
5 gentlemen. Good afternoon, welcome back. Have
6 a seat everyone.
7 Once again, we are calling a witness
8 out of turn.
9 Ms. Scotto.
11 The third-party defendant calls Mark Hinds.
12 M A R K H I N D S, having been duly sworn
13 stated his address as 1049 East 92nd Street,
14 Brooklyn, New York, took the witness stand and
16 THE COURT: Mrs. Scotto.
18 BY MS. SCOTTO:
19 Q. Good afternoon, Mr. Hinds.
20 A. Good afternoon, Ms. Scotto.
21 Q. By whom are you employed?
22 A. By the office of Newman, Fitch, Altheim,
23 Meyers.
24 Q. Is that the office where I work?
25 A. Yes, it is.
1022
Mark Hinds - for Defendant - Direct (Scotto)
1 Q. In what capacity are you employed?
2 A. As a paralegal.
3 Q. And do you work on cases with me?
4 A. Yes, I do.
5 Q. Did you do any work on this case?
6 A. Yes, I did.
7 Q. Did you make any efforts to reach Edward
8 Scoppa?
9 A. Yes, I did. I called Mr. Scoppa's office
10 yesterday.
11 Q. Did you call him at any other location?
12 A. I did. I called him at his house, but I
13 didn't get an answer.
14 Q. And can you tell me where the house is
15 located, just in what state?
16 A. New Jersey.
17 Q. And where the office is located?
18 A. New Jersey also.
19 Q. And you said you called him at his office,
20 is that his place of employment?
21 A. Yes, it is.
22 Q. What was the name of that place?
23 A. Joey's Fine Restaurant.
24 THE COURT: I'm sorry, Joey's?
25 THE WITNESS: Joey's fine restaurant.

1023
Mark Hinds - for Defendant - Direct (Scotto)
1 Q. Did you ever reach Mr. Scoppa?
2 A. Yes, I did.
3 Q. At which location?
4 A. At the restaurant, actually.
5 Q. Did you request that he appear for the
6 trial?
7 A. Yes, I did.
8 Q. And what did you learn?
9 A. Mr. Scoppa advised me that he won't come
10 to the trial because of work-related issues.
11 Q. Thank you Mr. Hinds.
12 THE COURT: Anything anyone?
13 MR. DURST: Just one question.
15 BY MR. DURST:
16 Q. Do you know if Mr. Scoppa is still
17 employed by Ferrara Foods as vice-president?
18 A. I'm not sure, no.
19 Q. You don't know?
20 A. No.
22 THE COURT: Anything from Ms. Cotter,
23 anything from you?
24 MS. COTTER: Nothing.
25 THE COURT: Thank you, Mr. Hinds.

1024
Proceedings
1 You may step down.
2 (Witness left the stand.)
3 THE COURT: Ladies and gentlemen, as
4 I indicated to you before, the balance of the
5 afternoon counsel and the Court have numerous
6 legal issues that we will be engaging in.
7 However, that does not mean that you have to be
8 here, so for those of you who are in the box,
9 have a very good Memorial Day Weekend. I know
10 everyone will be out there and most of you will
11 be out there having a grand old time, lots of
12 barbeques, all right. But with regard to your
13 health and well-being, all those hamburgers are
14 going to be done very well, right, when you
15 barbeque them. As any other items on those
16 barbeques everything will be done well.
17 So I'll see your bright and shiny
18 faces Tuesday afternoon. All right. I don't
19 want anyone to get sick. Okay, everyone? So
20 that being said, as you well know, the court is
21 not in session Monday, we observe Memorial Day
22 on Monday. We are not in session.
23 There is, I explained to you earlier,
24 Tuesday and Wednesday we also will not be in
25 session in the morning hours. However, Tuesday

1025
Proceedings
1 afternoon I'm going to ask you all to be here
2 promptly at 2 p.m. Tuesday afternoon.
3 Ordinarily, I would have given you 2:15, but
4 let me just suggest that it's incumbent upon
5 everybody and advisable for everyone to be here
6 promptly at 2 p.m. All right, everyone,
7 promptly at 2 p.m. All right?
8 That being said again, have a
9 wonderful Memorial Day Weekend. Be safe. Do
10 not discuss the case. I'm sure you have gotten
11 quite a bit under your belt with regard to this
12 case. I'm sure you believe you have heard --
13 some of you may believe you have heard so much,
14 that you can start gearing up for the finale so
15 to speak. Please fight that temptation. Do
16 not discuss the case amongst yourselves nor
17 with anyone else. Do not allow anyone to
18 attempt to discuss it with you or in your
19 presence.
20 Obviously, you will not speak with
21 any parties, attorneys or witnesses and more
22 importantly go to the area in question. All
23 right, everyone?
24 Again, have a fabulous weekend. We
25 will see you here Tuesday at what time?

1026
Proceedings
1 (All answered 2 p.m.)
2 THE COURT: Excellent. Have a good
3 one.
4 THE COURT OFFICER: Jury, please.
6 THE COURT: We are now in recess.
8 case adjourned to Tuesday, June 1, 2004 at
9 2:00 p.m.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1027

2 ----------------------------------------X
CIRRO RODRIGUEZ,
3
Plaintiff,
4 Index No.
-against-
5 16482/95
6
Defendant.
7 ----------------------------------------X
8
9 Index No.
-against- 16482/95
10
11
12 ----------------------------------------X

14 June 1, 2004
15 B E F O R E:

17
19 (Same as previously noted.)

-------------------------------------------------
20 MS. SCOTTO: Jury entering.
23 and gentlemen.
24 (All answered good afternoon.)
25 THE COURT: Have a seat. And judging

1028
Proceedings
1 by the looks on your faces, all very smiley
2 faces, everyone had an excellent weekend; is
3 that true?
5 THE COURT: Is that true, you got a
6 good restful weekend; is that right?
7 Thank you so much for all of you
8 being here in a timely manner, but the
9 attorneys and I are engaged in, you guessed
10 it --
11 JUROR: Legal matters.
12 THE COURT: Exactly, legal issues
13 that do not affect you. And I apologize if it
14 has inconvenienced anyone. I don't believe
15 that it may have, but to the extent that it
16 has, my profoundest apologies to you.
17 So I am going to ask you please to
18 excuse the attorneys and the Court. We are
19 seriously involved and have been involved with
20 legal issues since the inception of today and
21 we will continue to be involved with legal
22 issues for the balance of the afternoon.
23 So again, my profound apologies to
24 you. And I am going to ask you all to please
25 be back here bright and early -- well, not so

1029
Proceedings
1 early. Tomorrow as I explained to you I have
2 matters that do not concern this particular
3 case, my usual matters that are held primarily
4 Monday morning. They have been adjourned to
5 Tuesday afternoon because of the holiday. So I
6 will be involved with those issues tomorrow
7 morning.
8 I am going to, however, ask you to
9 all be back here tomorrow afternoon at about
10 2 o'clock or thereabouts. The attorneys will
11 provide their respective summations on
12 Wednesday afternoon. I will, therefore, charge
13 you first thing Thursday morning, so I'm going
14 to ask that your schedules reflect the fact
15 that you will be here Thursday morning and we
16 will not be concluded with this case until your
17 verdict Thursday at whatever time that may be
18 Thursday or, in the alternative, Friday morning
19 whenever your verdict is on Thursday.
20 All right, everyone? So that being
21 said, thank you very much. I do note that one
22 of you is missing, Juror No. 5 is out ill
23 today. And we will see if he is here tomorrow.
24 You will find out if he will be with us
25 tomorrow.
1030
Proceedings
1 All right, everyone, that being said
2 again, every single one of you as I explained
3 on Friday please be safe, don't go under any
4 ladders or don't let any black cats run across
5 your path or any broken mirrors or anything of
6 that sort. I want you all back here safely and
7 soundly tomorrow at what time?
8 (All answered 2 p.m.)
9 THE COURT: Thank you so much, ladies
10 and gentlemen. Have a wonderful balance of the
11 remaining afternoon, which is beautiful out
12 there and you don't have to stay any longer
13 than now because there is a Yankee game this
14 evening and chances are you don't want to be
15 anywhere near 161st Street when there is a
16 Yankee game in the evening, unless you happen
17 to be going there yourselves.
18 That being said, go Yankees. We will
19 see you tomorrow at 2. None of you roots for
20 the Mets, do you? You are in the wrong borough
21 if you were rooting for the Mets okay. All
22 right, everyone, have a fabulous balance of the
23 afternoon. Be safe tomorrow. You get to
24 sleep-in late a little bit, but again be safe
25 every single one of you. We want to see your

1031
Proceedings
1 bright and shiny faces, all right? See you
2 tomorrow at 2 p.m. Have a good one, everyone.
4 (Whereupon, there is a luncheon
5 recess taken and the case adjourned to 2:00
6 p.m.)
9 takes place on the record, in chambers, in
10 the presence of the Court and all counsel
11 and out of the hearing of the jury.)
12 THE COURT: Now that the court
13 reporter is with us in chambers, let's take up
14 the legal issues that we discussed Friday
15 afternoon in the Court's chambers.
16 First thing we need to do -- and
17 present in the Court's chambers on Tuesday,
18 June 1st, 3:40 or thereabouts are all counsel
19 present.
20 With regard to the first legal issue
21 is the record that we had not reduced to the
22 official court record since we had an off the
23 record conference vis-a-vis the objections with
24 regard to the EBT, which essentially translated
25 into the video testimony of Mr. Rogel. Prior

1032
Proceedings
1 to Ms. Cotter's videographer making changes on
2 the video that was shown to the jurors in
3 advance of the jurors seeing the videotape of
4 Mr. Rogel in the courtroom on May 26 and
5 May 27, Counsel and the Court off the record
6 had engaged in a review of objections to the
7 EBT and the objections were as follows:
8 In addition to certain items had been
9 withdrawn by various counsel from the jury's
10 consideration when counsel and the Court
11 reviewed the EBT.
12 Off the record.
13 (Discussion is held off the record.).
14 THE COURT: And if memory serves,
15 counsel and the Court reviewed the actual EBT
16 to make rulings on the objections on Friday,
17 may 21st. And as I recall it was Friday
18 afternoon that we had those objections on -- in
19 the Court's chambers outside the hearing of the
20 jurors.
21 As I recall, they were as follows:
22 And counsel, if you have your respective notes,
23 you may want to have them available now. But I
24 believe the Court considered all of the
25 following and ruled as follows with regard to

1033
Proceedings
1 Mr. Rogel's testimony.
2 Withdrawn from the jury's
3 consideration were as follows: Page 27, lines
4 4 through 5; page 28, lines 9 through 10, lines
5 19 through 20; page 29, line 25 through page 30
6 lines 2 through 4; page 31 lines 4 through 5;
7 page 39, line 4 to 7; and page 44, line 17.
8 Those items were withdrawn by -- off the
9 record.
11 THE COURT: Back on the record. With
12 regard to the items that I have just gone
13 through, plaintiff and third-party defendant
14 agreed to withdraw those from consideration by
15 the jury; is that correct?
18 THE COURT: And page 53, line 3, the
19 Court overruled the objection. The Court
20 overruled third-party defendant's objection.
21 At page 60 at lines 9 through 14, that was
22 withdrawn as was at page 63, line 2 -- line 2
23 is overruled and line 7 was withdrawn; is that
24 correct?
25 MS. SCOTTO: Overruled.

1034
Proceedings
1 THE COURT: Line 7 was withdrawn.
2 MS. SCOTTO: I have that as
3 overruled, your Honor. That was my objection.
4 THE COURT: Line 2 by Ms. Scotto that
5 was overruled.
6 MS. SCOTTO: Yes.
7 THE COURT: And line 7 I have noted
8 as withdrawn --
9 MS. SCOTTO: I --
10 THE COURT: -- by Miss Scotto.
11 MS. SCOTTO: That I have that as
12 overruled.
13 THE COURT: That was withdrawn both
14 in the EBT itself marked withdrawn and in my
15 notes that's listed as having been withdrawn by
16 Ms. Scotto. Line 7 --
17 MS. SCOTTO: I never would have
18 withdrawn that when that goes to the heart of
19 the case.
20 THE COURT: Again, based upon my
21 notations in the EBT itself and my notations in
22 my ongoing notations with regard to the EBT,
23 that line at line 7 is withdrawn by you,
24 Ms. Scotto.
25 MS. SCOTTO: Your Honor --

1035
Proceedings
1 THE COURT: So those are my
2 notations.
3 MS. SCOTTO: I understand that. I
4 would just like to note for the record that my
5 notations are it was overruled.
6 THE COURT: Your notations are
7 overruled. My notations indicate that line 2
8 your objection is overruled, and the objection
9 at line 7 was withdrawn. All right.
10 Page 64, line 3 by Ms. Scotto that
11 was withdrawn.
12 MS. SCOTTO: Your Honor, I have that
13 overruled as well.
14 THE COURT: Line 9 was overruled.
15 Those are my notations.
16 MS. SCOTTO: These go right to the
17 heart of the case. I never would have
18 withdrawn those objections.
19 THE COURT: Ms. Scotto, you see, this
20 is the reason that I like to contemporaneously
21 put this on the record, but if we did not, that
22 is why I make the notes that I do. I overruled
23 line 9; and line 3 your objection, Ms. Scotto,
24 was withdrawn.
25 MS. SCOTTO: Just if the record could

1036
Proceedings
1 note, your Honor, that I have that as
2 overruled.
3 THE COURT: You can note what you
4 wish, but line 3 on page 64 was withdrawn;
5 line 9 was overruled.
6 And on the same page line 64 -- on
7 page 64, line 18 through 25 was withdrawn,
8 along with page 65, line 2 through 24.
9 Let's start again. Let's start at
10 page --
11 MS. SCOTTO: I have my first
12 objection on page 19.
13 THE COURT: Right, starting at
14 page 19 I believe we may have initially
15 discussed lines 6 through 15, but thereafter I
16 have a notation in the margin of that EBT which
17 indicates that those lines are to stay.
18 MS. SCOTTO: That was based on my
19 objection which was overruled.
20 THE COURT: I don't even see an
21 objection at page 19 for the Court to have
22 overruled. But all I see is on page 19, line 6
23 through 15, initially I had removed it and
24 thereafter in the margin I have in red ink that
25 it remains.
1037
Proceedings
1 MS. SCOTTO: Your Honor, if I may, we
2 had a discussion at that time, you said there
3 was no objection listed in the transcript and
4 what I had said was usual stipulations all
5 objections with the exception of form were
6 preserved until time of trial. And I had
7 requested that lines 6 through 15 be removed
8 and my objection was overruled.
9 THE COURT: That's why those lines
10 remained.
11 MS. COTTER: Yes, they remained.
12 THE COURT: I have no notation in my
13 notes with regard to any objections. Because
14 in that -- on that particular page, at page 19,
15 there is no objection noted for the record with
16 regard to those lines. So that line -- those
17 lines remained.
18 The next page --
19 MS. SCOTTO: There were usual
20 stipulations so I can object at the time of
21 trial.
22 THE COURT: Apparently, I must have
23 overruled you because they remained.
24 MS. SCOTTO: You did.
25 THE COURT: Next page, page 26, line

1038
Proceedings
1 20 through 21 by Mr. Durst -- pay attention,
2 Mr. Durst. Are you reviewing the EBT?
4 THE COURT: Lines 19 through 21 at
5 page 26.
6 MS. SCOTTO: I have 19 through 23.
7 THE COURT: Page 26, line 20 through
8 21, that was your objection. Are you looking
9 at that, Mr. Durst?
10 MR. DURST: Actually, I didn't bring
11 it.
12 THE COURT: You don't have the EBT
13 with you, Mr. Durst?
14 MR. DURST: No, I thought you were
15 just going to record what you had --
16 THE COURT: And you did not bring the
17 EBT with you --
18 MR. DURST: No.
19 THE COURT: -- to review what we had
20 agreed to before the video of Mr. Rogel was
21 shown to the jury, since we had not reduced
22 this conference to the record? You did not
23 bring that EBT nor your notes?
24 MR. DURST: No, your Honor, just
25 abide by whatever notes you had as to what your

1039
Proceedings
1 rulings were.
2 THE COURT: So at this moment you are
3 incapable of addressing any of these objections
4 which we had not reduced to the record, is that
5 what you are saying?
6 MR. DURST: Yes. I just adhere to
7 your notes whatever they are.
8 THE COURT: That's not my question.
9 Since this was not reduced to the record, you
10 did not bring, A, a copy of the EBT with you;
11 B, a copy of your objections; and C, the
12 notations that you might have taken -- maybe
13 you did not take any notations -- but the
14 notations which you might have taken with
15 review to your objections or agreements with
16 regard to withdrawing items from consideration?
17 MR. DURST: I thought I had brought
18 it, but I hadn't.
19 THE COURT: That's not my question.
20 Do you, as we speak here in the robing room,
21 have that before you to comment upon?
22 MR. DURST: No.
23 THE COURT: Again, we are at page 26,
24 lines 20 through 21 where there is an objection
25 by Mr. Durst. So that was withdrawn according

1040
Proceedings
1 to my record in reviewing my EBT transcript
2 since there is a line clearly drawn through
3 Mr. Durst's objection.
4 MS. COTTER: Yes, that's what I have.
5 MS. SCOTTO: I have that as well.
6 MR. DURST: Makes sense.
7 THE COURT: Not whether it makes
8 sense, Mr. Durst. This is your case. That is
9 your client's future is on the record on line
10 here. And you did not bring in the EBT or any
11 notations to add to this, did you?
12 MR. DURST: No.
13 THE COURT: We next go to page 27
14 with regard to line 4 to 5 by Ms. Scotto,
15 please note my objection to that question. And
16 according to my record it was withdrawn; is
17 that correct?
18 MS. SCOTTO: Yes.
19 THE COURT: The next line is line 9,
20 again by Ms. Scotto, and that line was equally
21 withdrawn, correct?
23 THE COURT: Then we are on page 28
24 lines 9 through 10 and your record with regards
25 to line 9 through 10?

1041
Proceedings
1 MS. SCOTTO: That was withdrawn, your
2 Honor.
3 THE COURT: That was withdrawn. The
4 next line is 15.
5 MS. SCOTTO: That was withdrawn.
6 THE COURT: Withdrawn. The next
7 lines are 19 through 20, those are also
8 withdrawn, correct?
9 MS. SCOTTO: Yes.
10 THE COURT: Starting at page at
11 line 25 on page 29 that line through lines 4 on
12 page 30, that was likewise withdrawn; is that
13 correct?
14 MS. SCOTTO: Yes. As I understand
15 that was withdrawn by all parties, that line.
16 THE COURT: Next page is 31, lines 4
17 through 5 was likewise withdrawn by you,
18 Ms. Scotto.
19 MS. SCOTTO: Yes, it was, your Honor.
20 THE COURT: Next page I come to is
21 page 39, line 4 through 7, that was by you,
22 Mr. Durst. And that was agreed by all parties
23 to be removed.
24 MR. DURST: Yes, yes.
25 THE COURT: And thereafter lines 9

1042
Proceedings
1 through 19 and Ms. Cotter, you suggested that
2 would be withdrawn because it related to a
3 break in the proceedings.
4 MS. COTTER: And all parties agreed
5 to delete that.
6 THE COURT: So that was lines 9
7 through 19 at page 39.
8 Next page is page 40, line 7 by
9 Mr. Durst, note my objection. Does everyone
10 see that?
11 MS. SCOTTO: Yes.
12 THE COURT: All right, that was
13 overruled by the Court.
14 Next go to page 44, line 17 by
15 Ms. Scotto, you withdrew that objection.
17 THE COURT: Line 3 at page 53,
18 Ms. Scotto your objection was overruled by the
19 Court.
20 MS. SCOTTO: Can you say that one
21 again, your Honor?
22 THE COURT: Page 53, line 3.
23 MS. SCOTTO: Yes, your Honor, I saw
24 that was overruled.
25 THE COURT: Your objection was

1043
Proceedings
1 overruled.
2 MS. SCOTTO: But, your Honor, there
3 is some before then.
4 THE COURT: Then on that same page,
5 lines 13 through 15 were also withdrawn.
6 MS. SCOTTO: I had requested that
7 that be removed and I was overruled. I still
8 have some before then.
9 THE COURT: What do you have before
10 then?
11 MS. SCOTTO: I have page 46 --
14 THE COURT: I agree that at page 46,
15 lines 17 through 14, line 13 and 14 being the
16 interpreter's asking that that particular
17 question be repeated, that was withdrawn.
18 MS. SCOTTO: Your Honor at line 7
19 through 13. I thought you said 17?
20 THE COURT: No, 7 through 14 which
21 incorporates the interpreter's question at
22 line 13 through 14.
23 MS. SCOTTO: That's what I have as
24 well. I don't think I heard you correctly.
25 THE COURT: Does everyone agree?

1044
Proceedings
1 MR. DURST: Yes.
2 MS. COTTER: Yes.
3 THE COURT: That brings us back to
4 page 53 and I have line 13 through 15, that was
5 withdrawn.
6 MS. SCOTTO: Yes, your Honor, by all
7 parties.
8 THE COURT: Everyone in agreement?
9 MR. DURST: Yes.
10 MS. COTTER: Yes.
11 THE COURT: Next bringing us to
12 page 60, lines 9 through 14 were withdrawn.
13 MS. SCOTTO: By all parties I have,
14 your Honor.
15 THE COURT: Correct?
16 MR. DURST: Yes.
17 THE COURT: Brings us to page 63.
18 MS. SCOTTO: I have 62.
19 MS. COTTER: On 62 lines 11 through
20 21 everyone agreed.
21 THE COURT: One second.
22 All right, page 62 line 11 through
23 21, again, this was the videographer taking a
24 break with regard to changing tapes so all
25 parties agreed to strike that from the record,

1045
Proceedings
1 correct?
2 MR. DURST: Yes.
3 MS. SCOTTO: Yes.
4 MS. COTTER: Yes.
5 THE COURT: 63 line 2 I overruled
6 Ms. Scotto's objection. Same page, line 7,
7 Ms. Scotto, I have you listed as having
8 withdrawn that.
9 MS. SCOTTO: Your Honor, I have it
10 listed as being overruled.
11 THE COURT: That I specifically noted
12 as being withdrawn both in the EBT itself and
13 in my notes. The lines at 14 through 23, this
14 is colloquy with the interpreter with regard to
15 a confusion in his interpretation, so I believe
16 everyone agreed to withdraw that from the jury.
17 MS. SCOTTO: Yes.
18 THE COURT: So that's lines 14
19 through 23; is that correct, everyone?
21 MS. COTTER: That's correct.
22 MS. SCOTTO: Yes.
23 THE COURT: We will move next to
24 page 64 line 3. I have that line as having
25 been withdrawn.
1046
Proceedings
1 MS. SCOTTO: I have it as overruled,
2 your Honor.
3 THE COURT: Line 9 as being
4 overruled. So those are my notations, line 3
5 was withdrawn and line 9 was overruled. And
6 with regard to lines 18 through 25 on page 64,
7 and the entire page of line 65 up to line 25
8 was withdrawn. So it's questions at line 18 on
9 page 64 through 25 was withdrawn. Page 65 line
10 2 through line 24 was withdrawn.
11 MS. SCOTTO: Page 66?
12 THE COURT: We are still on 65. All
13 right, is everyone in agreement?
14 MS. SCOTTO: Yes.
15 MR. DURST: Yes.
16 MS. COTTER: Right, that's correct.
17 THE COURT: Then page, all of page --
18 actually I withdraw that. This is the colloquy
19 with regard to who paid for Mr. Rogel's tickets
20 and his accommodations in New York when he came
21 up pursuant to subpoena from Maryland for the
22 EBT. So that would include all of page 65 that
23 goes to 25, and page 66 from line 2 through
24 line 21.
25 MS. SCOTTO: Yes.

1047
Proceedings
2 MS. COTTER: Yes.
3 THE COURT: That was all withdrawn
4 from the jury's consideration vis-a-vis his
5 reimbursement for tickets, reservations,
6 accommodations, et cetera.
7 The next page that I have starts at
8 page 67, line 2 through line 11, that was also
9 withdrawn from the jury's consideration by all
10 parties.
11 MS. SCOTTO: Yes.
12 THE COURT: Page 68, lines 5 through
13 8 and lines 19 through 21 were overruled by the
14 Court. These were Ms. Scotto's objections; the
15 Court overruled them.
16 MS. SCOTTO: Yes.
17 THE COURT: Thereafter at page 68,
18 line 25 including all of page 69 up to line 2
19 of page 70 were also withdrawn; is that
20 correct?
21 MS. COTTER: Yes.
22 MS. SCOTTO: Yes.
24 THE COURT: Next we have page 71.
25 MS. SCOTTO: I have page 70

1048
Proceedings
1 something, I have page 70 lines 14 through
2 page 71 lines 18, this concerned Vanessa
3 Mangel's conversation with Ed Scoppa at Ferrara
4 Foods and I had requested that it be removed
5 and I was overruled.
6 THE COURT: I have nothing on page 70
7 except for line 2. So none of page -- the
8 balance of page 70 through page 71 to line 9,
9 none of that I have notations with regard to
10 any applications.
11 MS. SCOTTO: I have it noted.
12 THE COURT: Does anyone else have
13 anything noted?
14 MS. COTTER: I don't have anything.
15 THE COURT: Anything else on page 70
16 other than line 2?
17 Now, on page 71, I do have a
18 withdrawal of lines 10 through 24 -- I'm sorry,
19 through 25. That was all withdrawn up to
20 page 72, 2 through 4.
21 MS. COTTER: Yes.
22 THE COURT: At page 72 line 8 through
23 9, that objection was overruled. Ms. Scotto's
24 objection was overruled. Are we all on the
25 same page?
1049
Proceedings
1 MS. SCOTTO: Yes.
2 MR. DURST: Yes.
3 MS. COTTER: Yes.
4 THE COURT: I also have page 73 line
5 6 through 17 was withdrawn by Ms. Scotto.
6 MS. SCOTTO: Then it must be
7 Mr. Durst also, but he made comments, but I
8 definitely withdrew.
9 MR. DURST: Yes, me too.
10 THE COURT: Page 75, line 6 through
11 25, page 76 line 2 through 16 were also
12 withdrawn.
13 Same page 76 lines 18 through 25 I
14 sustained the objection by Ms. Scotto. That
15 took up also sustaining the objections continue
16 on from 76 through page 77 from line 2 through
17 line 20. So these are objections on page --
18 starting at page 76 line 18 continuing through
19 page 77 through line 20, that objection was
20 sustained by Ms. Scotto.
21 MS. SCOTTO: Your Honor, I have that
22 the objection was sustained from page 76 line
23 18 through 77 line 2; and then on page 77 lines
24 3 through 20 were withdrawn by all parties. It
25 was just a matter of going off the record.

1050
Proceedings
1 THE COURT: All right, I thought that
2 was all sustained on your objection. That was
3 76 lines 18 through 25 that was sustained,
4 correct?
5 MS. SCOTTO: Yes.
6 THE COURT: Through line 20 on
7 page 77?
8 MS. SCOTTO: My objection sustained
9 from page 76 line 18 through page 77 line 2.
10 And then page 77 lines 3 through 20 all parties
11 agreed to withdraw that portion because it was
12 just a matter of all of us agreeing to go off
13 the record.
14 THE COURT: With regard to lines 3
15 through 20 on page 77, I agree that was
16 withdrawn.
17 Next we come to page 79 lines 2
18 through 9, Ms. Cotter you suggested that be
19 withdrawn.
20 MS. COTTER: Yes.
21 THE COURT: Thereafter at line 21
22 through 24 I overruled Ms. Scotto your
23 objection on that, both you, Ms. Scotto, and
24 you, Ms. Cotter, objected, right?
25 MS. COTTER: Yes.

1051
Proceedings
1 MS. SCOTTO: Yes.
2 THE COURT: I overruled that
3 objection.
4 On page 80 line 25 Ms. Scotto, you
5 withdrew that objection.
6 MS. SCOTTO: Yes.
7 THE COURT: On page 82 line 9
8 objection by Ms. Scotto, that was overruled.
9 Same page lines 15 through 16 overruled. And
10 then line 23 again by Ms. Scotto, that
11 objection was withdrawn.
12 So line 23, Ms. Scotto, you withdrew;
13 lines 9, 15 through 16 I overruled those
14 objections, objection by Ms. Cotter and
15 Ms. Scotto, correct?
16 MS. SCOTTO: Yes.
18 THE COURT: Next page 83 line 6
19 through 7 both by Ms. Scotto and Ms. Cotter
20 that was overruled. Bringing us next to
21 page 86 lines 3 and line 6 and 7, Ms. Cotter,
22 you withdrew those objections. Likewise --
24 THE COURT: -- on line 19 on that
25 same page --
1052
Proceedings
2 THE COURT: -- page 86, you withdrew.
3 Page 87, Ms. Cotter, you withdrew
4 your objection on line 18.
6 THE COURT: Page 94 line 11 by
7 Mr. Durst that was overruled; line 12 by
8 Ms. Cotter that was withdrawn; line 17 by
9 Mr. Durst that was overruled. Next page is 95,
10 line 22 by Mr. Durst that was overruled.
11 Page 99, lines 9 through 10 that was
12 by Mr. Durst, that was withdrawn.
14 THE COURT: I think that's it for the
15 balance of the EBT; is that correct?
16 MS. SCOTTO: Yes.
17 MS. COTTER: Yes.
18 THE COURT: All right, that takes in
19 the legal issue with regard to -- that we had
20 not reduced to the record almost a week and a
21 half ago that we had this conference off the
22 record in chambers, correct?
23 MS. SCOTTO: Yes.
24 MR. DURST: Yes.
25 MS. COTTER: Yes.

1053
Proceedings
1 MS. SCOTTO: Your Honor, I just can't
2 remember, did we do the Miguel Rogel statement,
3 did we do that on the record?
4 THE COURT: I'm going through that in
5 order now.
6 The next issue that I have here is
7 Margo Tonnaer's items that were initially
8 marked either for identification or in
9 evidence. And those are items B and D which
10 were marked for identification, Defendant's B
11 and D for identification on May 19th, and
12 Defendant's C in evidence also on 5/19. These
13 were all the letters and correspondence to the
14 Durst Law Firm from Ms. Tonnaer. And
15 notwithstanding the fact that Item No. C the
16 Court initially allowed in evidence, but all of
17 these items, B, C and D, were not published to
18 the jury.
19 So with regard to those issues and
20 the admissibility of those issues, I instructed
21 all counsel that the Court was not convinced
22 that items B and D should be submitted into
23 evidence for the jury. And the Court was
24 equivocal about allowing Item C to be published
25 to the jury and indeed considered by the jury

1054
Proceedings
1 as evidence.
2 So quickly, I will quickly, bearing
3 in mind the time, allow all counsel to argue
4 why the Court should allow those items which
5 were initially marked either for identification
6 and/or in evidence to be submitted to the jury.
8 THE COURT: These were, I think
9 these -- were these yours, Ms. Cotter's, in
10 evidence?
11 MS. COTTER: Yes.
12 Your Honor, B is a letter signed by
13 Margo Tonnaer Peters, dated October 11, 1997,
14 that's marked as Exhibit B. That refers to a
15 summons and complaint she allegedly received
16 from Mr. Durst on October 10 or dated
17 October 10, 1997.
18 There is no reason this letter
19 shouldn't be allowed into evidence. It is a
20 letter signed by Margo Tonnaer Peters that on
21 questioning, on cross-examination, she admitted
22 she wrote and signed. She understood it. And
23 it contains an inconsistency in which she says,
24 "We assume that it," meaning the litigation
25 started by Mr. Durst against her company,

1055
Proceedings
1 concerns Jay Tonnaer Machine Constructees,
2 which is a company obviously different from
3 Machinefabriek Tonnaer. And although the Court
4 has refused to admit it into evidence based
5 upon Mr. Durst's argument that it was prepared
6 in anticipation of litigation --
7 THE COURT: Let me hear your
8 arguments with regard to why it should go in.
9 I will hear from Mr. Durst separate and apart
10 from you. But let's just argue this as we had
11 initially.
12 MS. COTTER: Well, it should come in
13 as a best record as she testified it was
14 prepared in the ordinary course of business on
15 her letterhead and signed by her. And it
16 should also come in as a prior inconsistent
17 statement.
18 The litigation referred to in this
19 concerns Index No. 24065/97, which is a
20 different litigation than the one that is at
21 trial at the present time. So arguably it
22 wasn't prepared in anticipation of litigation.
23 Do you want me to address the other
24 two?
25 THE COURT: Yes, please.

1056
Proceedings
1 MS. COTTER: With respect to marked
2 Exhibit C which is in evidence now, my argument
3 is the same. It's a business record prepared
4 in the ordinary course of business which the
5 witness testified to. It is dated November 23,
6 1998 on Tonnaer Machines BV letterhead, signed
7 by Mrs. Margo Tonnaer Peters. She identified
8 it as something she wrote and signed.
9 There is no reason it shouldn't go
10 into evidence as a business record as she is
11 the custodian of the records and the author of
12 this letter. Also, this letter does not
13 mention litigation whatsoever. Doesn't even
14 reference a summons and complaint as Exhibit B
15 did.
16 Then finally, Exhibit D is a letter
17 to Mr. Durst from Margo Tonnaer Peters dated
18 May 11, 1999 also on Tonnaer Machines BV
19 letterhead. This letter of all of them
20 especially should go into evidence because it
21 clearly and admittedly, or I should say the
22 witness admitted it contains a prior
23 inconsistent statement. Also, it does not
24 refer to a litigation whatsoever. So it was
25 not prepared solely for the purposes of

1057
Proceedings
1 addressing a litigation against Ms. Tonnaer
2 Peter's company and herself.
3 With respect to the inconsistency
4 contained in it that she admitted to, that is
5 contained in paragraph 5 of the letter. And it
6 states that it could be that the concerning
7 machine was delivered to National Equipment
8 Corporation but they cannot be certain. This
9 is contained in the letter. And as the Court
10 is well aware, this witness, who had no
11 personal knowledge of her father-in-law's
12 business, came in and testified that National
13 Equipment was the only distributor that she was
14 aware of that had a business relationship with
15 her father-in-law's company, Machinefabriek
16 Tonnaer, in the United States.
17 So this statement it could be that
18 the concerning machine was delivered to NEC but
19 they cannot be certain, is directly in
20 contradiction to that and she was asked about
21 it on cross and admitted it was an
22 inconsistency. Clearly, it should be shown to
23 the jury so that they can see it was written by
24 her, signed by her. And it's more powerful
25 than them simply hearing from her almost two

1058
Proceedings
1 weeks ago on the stand that it was an
2 inconsistency. And it wasn't prepared in
3 anticipation of this litigation. It references
4 an Index No. 24065/97, which is not the lawsuit
5 that's being tried right now.
6 So I would vehemently object to the
7 Court not allowing these into evidence. The
8 jury should be able to see them as they clearly
9 go to this witness' credibility and her reason
10 for coming to New York to testify in the
11 plaintiff's case.
12 MS. SCOTTO: Your Honor, I also join
13 in the application to admit them into evidence.
14 They are business records and they are prior
15 inconsistent statements and they're akin to
16 Miguel Rogel's statement in that they are
17 inconsistent statements. And I would ask that
18 they be admitted.
20 understanding is that a statement -- the Court
21 may exclude a statement when its contents are
22 fully disclosed to the jury orally, and there
23 is a Court of Appeals case People versus
24 Piazza, 48 NY2d 151 1979, which indicates that
25 the statement, once its contents are disclosed

1059
Proceedings
1 to the jury orally, need not be admitted into
2 evidence.
3 Furthermore, I don't believe that
4 this is a business record and for the reasons
5 the Court mentioned before, that this is
6 clearly prepared in anticipation of litigation
7 not in the ordinary course of the business of
8 the enterprise.
9 THE COURT: Okay. Having reviewed --
10 MS. SCOTTO: Your Honor, may I add
11 something else in response to what he said? I
12 didn't comment about the preparation of
13 litigation because I was waiting for him to
14 make the argument, but this was not in
15 preparation for litigation. The litigation was
16 pending at the time the letters were written.
17 It concerns a different lawsuit and in
18 preparation of litigation refers to a privilege
19 between a party and that party's attorney and
20 here the letters were written to an adverse
21 attorney and to the Court. They were in the
22 court file and they are public documents and
23 they are akin to Miguel Rogel's statement which
24 was also disclosed to the jury in his oral
25 testimony. It's the same thing.

1060
Proceedings
1 THE COURT: Based upon the testimony
2 of Ms. Tonnaer and based upon the letters that
3 have been proffered in this case, I am going to
4 withdraw them from the jury's consideration,
5 but clearly there is no basis to admit them.
6 They were not business records of Ms. Tonnaer,
7 because that was not prepared in the regular
8 course of this business, but they were clearly
9 based upon her testimony, prepared in
10 anticipation of litigation albeit anticipation
11 of her company's being involved in the lawsuit.
12 So to the extent that they are not
13 reliable as business records and to the extent
14 that they were actually prepared in
15 anticipation of litigation, they will be
16 withdrawn from the jury's consideration. And I
17 cite National State's Electric Corporation
18 versus LFO Construction Corporation at 203 AD2d
19 49 First Department case 1994. So that will be
20 withdrawn from the jury's consideration and I
21 will give the jurors a curative instruction to
22 disregard that and any testimony relating to
23 those letters that they have before them.
24 There is no inconsistent statement
25 for them to consider because all of that

1061
Proceedings
1 relates back to the letters that are at issue.
2 So they may not consider anything that is not
3 before them including these letters. They are
4 not business records. There is no prior
5 inconsistent statement as relates to those
6 letters and any testimony referring to those
7 letters. These are withdrawn from the jury's
8 consideration and the Court will give them a
9 curative instruction with regard to that.
10 You have your exceptions.
11 MS. COTTER: Your Honor, as to the
12 May 11, 1999 letter, you don't see that as an
13 inconsistency?
14 THE COURT: All of these letters, to
15 the extent that none of these letters are
16 business records, that all of these letters are
17 prepared and certainly pursuant to her
18 testimony, in anticipation of a lawsuit; that
19 is, in anticipation of a lawsuit against her
20 company, these are all withdrawn from the
21 jury's consideration since there is no
22 reliability with regard to business records
23 vis-a-vis these letters, so those letters are
24 all withdrawn from the jury's consideration.
25 MS. SCOTTO: Your Honor, if I may

1062
Proceedings
1 also add, it's akin to having a pleading in
2 another lawsuit which would be admissible.
3 THE COURT: That is not how I
4 characterize this prohibition against allowing
5 items that are generated in anticipation of
6 litigation.
7 So none of this goes before the jury.
8 These are all items generated in anticipation
9 of litigation. Whether that litigation went
10 forward or folded, these are all prepared and
11 admittedly by her testimony in anticipation of
12 litigation. So these are withdrawn from the
13 jury's consideration. The Court will give the
14 jury a curative instruction with regard to
15 those letters at the appropriate time.
16 MS. COTTER: And her testimony with
17 respect to any of the letters?
18 THE COURT: Will be stricken. Any of
19 her testimony dealing with these letters will
20 be stricken from the jury's consideration.
21 MS. COTTER: Over exception.
22 MS. SCOTTO: Except.
23 THE COURT: Obviously, it's over
24 exception, but that will be withdrawn from the
25 jury's consideration.
1063
Proceedings
1 The next item was Mr. Greenberg's
2 cards which he brought in as copies and not as
3 originals. Since by his testimony the
4 originals were available to him to bring to the
5 court, but he just brought in the copies, to
6 the extent that all attorneys stipulate to
7 allow Mr. Greenberg to provide that the Xerox
8 copies of the originals would be sufficient to
9 the extent that all parties agreed and
10 stipulated that it would be so, these will be
11 allowed to be before the jury as a foundation
12 has been previously laid.
13 MS. COTTER: Thank you, Judge, that's
14 Exhibit G, Defendant's G correct, the Greenberg
15 cards?
16 THE COURT: Whatever that represents.
17 I don't have that readily available to me right
18 now.
19 Next item is Mr. Rogel's proffered
20 statement, that is the statement that I believe
21 he signed; is that correct?
22 MS. COTTER: The signed statement
23 that he was referring to at the videotaped
24 deposition.
25 THE COURT: Right and the videotape

1064
Proceedings
1 was before the jury on --
2 MS. COTTER: May 26 and May 27.
3 THE COURT: That would have been --
4 correct. On the 27th and on the 26th when the
5 jury had that videotape before them.
6 And while we are at it, I'm not sure
7 this was actually on the record, but at side
8 bar counsel agreed to forego the foundational
9 requirements for the introduction of the
10 videotape itself; is that correct?
12 MS. COTTER: Yes.
13 MS. SCOTTO: Yes.
14 THE COURT: Before the jurors viewed
15 that.
16 With regard to that proffered
17 statement, both plaintiff and defendant offered
18 the statement into evidence and I think off the
19 record, Ms. Cotter, you agreed to offer it as
20 yours since it was, if I'm not mistaken, the
21 video was offered by you; is that correct?
22 MS. COTTER: Yes. So the Rogel
23 statement will be Defendant's Exhibit F?
24 THE COURT: And Ms. Scotto, you
25 objected at the time to the introduction of

1065
Proceedings
1 that statement, correct?
2 MS. SCOTTO: Yes.
3 THE COURT: All right. The videos as
4 I explained, I'm not sure now if it was on the
5 record or not, but the video itself will be a
6 court exhibit. However let me just explain it,
7 everyone.
8 I know I did this off the record, but
9 just let's make sure that everyone understands.
10 If the jury has any questions with regard to
11 the testimony of Mr. Rogel vis-a-vis the video,
12 everyone understands that if there are any
13 readbacks with regard to any part of
14 Mr. Rogel's testimony, we will utilize the EBT.
16 MS. COTTER: Yes.
18 THE COURT: Because we are not at the
19 point where we have available, meaning the
20 Court does not have the resources available to
21 immediately go to the videotape since we don't
22 have equipment. I think there is one monitor
23 with a VCR that's available to all civil and
24 criminal term parts in Supreme Court.
25 So, so long as everyone agrees that

1066
Proceedings
1 if there is any readback to be done it will be
2 done so with the EBT of Mr. Rogel which the
3 Court has as a court exhibit as well. All
4 EBT's the Court will annex as a court exhibit
5 and to facilitate the jurors' request, if any,
6 for readback, they'll be done by way of the EBT
7 and not by way of the video.
8 Does everyone understand and agree to
9 that?
10 MS. COTTER: Yes.
11 MS. SCOTTO: Yes.
12 MS. COTTER: Can I give you the
13 videotape for the Court exhibit now?
14 THE COURT: Don't give it to me right
15 now. The next time we are in the courtroom
16 just bring it with you.
17 So now, Mr. Rogel's statement is
18 Defendant's F, third-party defendant objects so
19 that's Defendant's F. I know there was a
20 confusion so that's how we will mark that. And
21 G was Mr. Greenberg's card, so now they'll be
22 in evidence; is that correct?
23 MS. COTTER: Yes.
24 THE COURT: And there is no
25 objection, right?
1067
Proceedings
2 MS. SCOTTO: No.
3 THE COURT: Now, there was an issue
4 with regard to the experts and the items that
5 they relied upon with regard to the standards
6 in the industry. And there was an issue with
7 regard to the various -- withdrawn.
8 There was an item that was introduced
9 into evidence for the purposes of impeachment
10 by Mr. Durst.
11 MS. COTTER: The bakery standards.
12 THE COURT: Of I think that was your
13 expert, Ms. Cotter. That was Mr -- was that
14 Freymuller?
15 MS. COTTER: Visser, V-I-S-S-E-R.
16 THE COURT: When did Mr. Visser
17 testify?
18 MS. COTTER: Tuesday afternoon and
19 Wednesday morning. Would be May 25th and
20 May 26.
21 THE COURT: And I believe the item
22 was Plaintiff's 13 in evidence; is that
23 correct?
25 THE COURT: And that related to which

1068
Proceedings
1 particular item, that was the '49 model code
2 was that what it was?
3 MR. DURST: '47 American -- the
4 bakery safety code.
5 MS. COTTER: Now, I would point out
6 Mr. Durst only cross-examined the witness on
7 Sections 6.1.1, 6.1.2 and 6.1.5.
8 MR. DURST: That's not true.
9 MS. COTTER: Even though he had
10 mentioned possibly cross-examining him on later
11 sections.
12 MR. DURST: No, he said, in fact,
13 that it was -- the witness testified that it
14 was a violation of section -- the Section 7
15 which was a later section. I certainly
16 cross-examined him about all the sections that
17 were marked. We redacted everything except the
18 ones that I cross-examined him with regard to.
19 MS. COTTER: Do you have a transcript
20 with you of his testimony? Because I marked
21 what you questioned him as well.
22 MR. DURST: Well, I remember it as
23 well.
24 MS. COTTER: And I only have those
25 three sections, so the document should be

1069
Proceedings
1 redacted with the exception of 6.1.1, 6.1.2 and
2 6.1.5.
3 MR. DURST: In fact, the Court had
4 redacted all the portions except those to which
5 I had cross-examined. And you will note on the
6 Plaintiff's Exhibit 13, that Item 7 is not
7 redacted.
8 THE COURT: Excuse me one second.
10 MS. COTTER: For the record, I
11 believe Mr. Durst referred to different
12 sections at side bar of what he was going to
13 cross-examine on and -- but then if you look at
14 the actual minutes of the cross-examination, he
15 only cross-examined on those three sections, so
16 there is no need for the jury --
17 MR. DURST: You want to keep the one
18 out that you really hate the most is what you
19 want to do and it's clear the witness
20 acknowledged that that one did apply and that
21 they had violated that one.
22 THE COURT: Let me just go back
23 because --
24 MS. COTTER: That's not true per the
25 minutes.
1070
Proceedings
1 THE COURT: Let me just go back
2 because I think this was your objection,
3 Ms. Scotto, with regard to these items --
4 MS. SCOTTO: There is a whole bunch
5 of them.
6 THE COURT: -- that were not turned
7 over to you.
8 MS. SCOTTO: Yes, there is a whole
9 bunch of them that --
10 MS. COTTER: That weren't turned over
11 to either of us.
12 MS. SCOTTO: Right. There is
13 actually five of them.
14 MR. DURST: They weren't turned over
15 to me either until the witness took the stand.
16 MS. SCOTTO: There were five of them
17 that were not turned over by your expert that
18 he testified about.
19 THE COURT: With regard to those
20 items, and Ms. Scotto you did not call an
21 expert, correct, a liability expert?
22 MS. SCOTTO: Correct.
23 THE COURT: Ms. Cotter, you did turn
24 over a liability expert?
25 MS. COTTER: Yes.

1071
Proceedings
1 THE COURT: You had a liability
2 expert. And you produced a 3101(d) exchange
3 with all the parties concerning the areas that
4 your expert would be addressing?
5 MS. COTTER: Yes.
6 THE COURT: Okay. And that was,
7 according to you, a very specific and detailed
8 disclosure, correct?
9 MS. COTTER: Yes, as to what he would
10 testify about.
11 THE COURT: All right. Now, to the
12 extent that as I understand it your expert
13 disclosed all of the items that have been
14 testified to thus far, correct and this was
15 Dr. Visser, that was your liability expert,
16 correct?
17 MS. COTTER: Yes. You are saying he
18 disclosed -- I'm not sure I'm following you.
19 THE COURT: Dr. Visser disclosed the
20 Industrial Safety Standards of 1929, correct?
21 MR. DURST: No, that was the
22 plaintiff's expert who did that.
23 THE COURT: All right, your expert
24 did that one and the model code.

1072
Proceedings
1 THE COURT: 1949 Geneva model code.
2 MS. SCOTTO: Yes.
3 MR. DURST: Yes.
4 THE COURT: Correct? And then if I'm
5 not mistaken, Mrs. Cotter, your expert is the
6 person who brought in the 1947 American
7 Standard Safety Code for Bakery Equipment and
8 that is actually the item at issue, correct --
9 MS. COTTER: Yes.
10 THE COURT: -- that he brought with
11 him to court?
12 MS. COTTER: Yes, that I objected
13 going into evidence.
14 THE COURT: On the date he testified.
15 MS. COTTER: Yes. And I objected to
16 this going into evidence.
17 THE COURT: Right, but that was an
18 item that your particular expert had provided
19 you, that you then turned over in the way of
20 discovery to all of the other attorneys
21 vis-a-vis what your expert was anticipating
22 that he would testify to with regard to the
23 standards in the industry.
24 MS. COTTER: No. Actually, on
25 cross-examination, when he was asked what he

1073
Proceedings
1 reviewed and what he had with him, it came up
2 that he had that with him and that's when
3 Mr. Durst got hold of it. He had no intention
4 of coming in and he didn't testify as to what
5 it was at all on direct examination.
6 THE COURT: But that was what the
7 expert had with him with regard to his
8 assessment of what the standards in the
9 industry were with regard to the issues in this
10 particular case.
11 MS. COTTER: Not with regard to his
12 tech assessment, it was just part of the
13 documents he had with him.
14 THE COURT: With regard to what the
15 standards in the industry were.
16 MS. COTTER: It was one standard he
17 had with him.
18 THE COURT: Okay. What were you
19 going to say?
20 MS. COTTER: You will remember,
21 Judge, it has multiple provisions.
22 MR. DURST: Yes, he produced it on
23 cross-examination as being the safety code that
24 applied and then I questioned him with regard
25 to it. And we redacted those portions which I

1074
Proceedings
1 did not question him about at the very time
2 that it was going on.
3 THE COURT: So Ms. Scotto, with
4 regard to your application vis-a-vis certain
5 items that the various experts testified to --
6 MS. SCOTTO: Your Honor, my
7 application was very specific. It was only to
8 the plaintiff's liability expert, Dr. Paul.
9 THE COURT: All right. To the extent
10 that we had this before the expert testified, I
11 made my rulings with regard to what he was
12 going to testify to.
13 MS. SCOTTO: Your Honor, if I may,
14 the plaintiff's counsel was instructed on
15 Monday, May 17, to fax sections to defense
16 counsel and third-party defense counsel about
17 what his engineer was going to be relying upon
18 by Tuesday, May 18.
19 The Thursday of that week at the end
20 of the day, it was about 5 o'clock, Mr. Durst's
21 firm faxed over six pages which included the
22 Handbook for Industrial Safety Standards, 1929
23 edition, and the Model Code for Industrial
24 Establishments for the Guidance of Governments
25 and Industry, 1949. Yet Dr. Paul testified

1075
Proceedings
1 about the American Society of Standards, 1947,
2 the Standard of Safety for Bakery Machinery,
3 the American Standard Safety Code for Bakery
4 Equipment, the National Standards Institute of
5 1947 revised in 1971, 1973, 1977, 1983, 1988,
6 1994, and 2000, as well as ANSI. And none of
7 those sections were provided by plaintiff's
8 counsel to my firm as was directed by the
9 Court. And I had requested that the testimony
10 concerning those standards be stricken from the
11 record.
12 MS. COTTER: And I concurred and
13 concur now.
14 THE COURT: What were your expert's
15 disclosures with regard to what your expert was
16 going to testify? Let me have your disclosure,
17 let me see that.
18 It's already ten to, so we are not
19 going to finish this and we haven't even gotten
20 to the requests to charge. So Mr. Durst, to
21 the extent that you have not given me anything
22 that I can consider at this point, we are going
23 to continue this tomorrow morning with regard
24 to the requests to charge.
25 So this is your last opportunity to

1076
Proceedings
1 provide the Court in writing with items that
2 you want the Court to consider vis-a-vis a
3 request to charge. Be mindful, the three of
4 you, that you each and every one of you are
5 anticipating summing up tomorrow morning --
6 sorry, tomorrow afternoon.
7 MS. SCOTTO: I thought that's what
8 you said.
9 THE COURT: So now that I have the
10 defendant's and the third-party defendant's
11 requests to charge and sample verdict sheet, I
12 suggest, Mr. Durst, that you utilize this
13 opportunity to essentially provide the Court
14 with what the Court needs to make an
15 intelligent decision as to what you're asking
16 the Court to consider vis-a-vis the requests to
17 charge and vis-a-vis your verdict sheet.
21 THE COURT: We are not concluded with
22 the bulk of the conference which needed to
23 include the charge conference. Since the three
24 of you -- we are expecting three of you to sum
25 up tomorrow afternoon. The jury is not due

1077
Proceedings
1 back until 2 o'clock tomorrow afternoon.
2 Obviously, you are all experienced trial
3 attorneys so I have no doubt, having been an
4 experienced trial attorney myself, that each
5 one of you has at the time that you prepared
6 your opening, had your summations ready to go.
7 And this is just fine-tuning at this
8 point because I know that when I was a trial
9 attorney I used to do my best summations in my
10 sleep before I delivered my summations. So I'm
11 sure you are doing the same thing and have been
12 refining and fine-tuning your summations all
13 week long. So needless to say, you are
14 proficient enough, so depending on my ruling
15 tomorrow before the luncheon recess, you will
16 have the ability to have summation A, B or C
17 under your belt and ready to go. All right,
18 everyone.
19 MS. COTTER: So we will finish the
20 legal issues and then do the requests to charge
21 in the morning?
22 THE COURT: In terms of legal issues
23 there is only one real issue left remaining,
24 the OSHA with regard to your request as to
25 Mr. Rodriguez's EBT at pages 8 through 10 with

1078
Proceedings
1 regard to the Social Security card and --
2 MS. COTTER: Right.
3 THE COURT: -- what is contained
4 therein.
5 And Ms. Scotto, your request with
6 regard to reading the last two pages of
7 Mr. Rodriguez's EBT and this is what you wish
8 to read to the jury?
9 MS. SCOTTO: Yes.
10 THE COURT: And my review of those
11 last remaining pages were areas wherein he
12 testified to the affect of wishing to return to
13 Mexico and not having a green card.
14 MS. SCOTTO: Yes.
15 THE COURT: And you wish to read that
16 to the jury notwithstanding my ruling?
17 MS. SCOTTO: Well, I just wanted to
18 make a record of it, Judge.
19 MS. COTTER: The same with pages 8 to
20 10 on his ill health. To the extent the Court
21 won't let me read it to the jury, I just want
22 to read it into the record.
23 THE COURT: With regard to both of
24 these issues, since both of these issues
25 reflect on a ruling of the Court with regard to

1079
Proceedings
1 Mr. Rodriguez's status as a worker in the
2 United States either with or without documents
3 either with or without a green card, whatever
4 the status may be, that is not an issue that is
5 before this jury so that may not be brought
6 forth for the jury's consideration vis-a-vis
7 lost earnings, nor may it be brought forth with
8 regard to the jury's consideration of any
9 damages or in any event brought before the jury
10 for their consideration at all.
11 That is not something for the jury's
12 consideration. So as I indicated before, all
13 the EBT's are Court Exhibits, and those will be
14 a part of the Court record for later review if
15 and when there is an appellate review of this
16 trial.
17 All right, everyone, so that covers
18 the two other items that were left remaining
19 other than this item and the OSHA issues.
20 MS. SCOTTO: Judge, my application
21 for a mistrial?
22 THE COURT: That application will be
23 taken up when we review the issues of OSHA.
24 MS. COTTER: With respect to the
25 illegality, will the Court let me read just the

1080
Proceedings
1 particular --
2 THE COURT: As I explained, that is a
3 court exhibit. That will remain with the court
4 files. That is not an area that will be part
5 of the direct case, since I have already made
6 my rulings with regard to the plaintiff's legal
7 or nonlegal status. So that's my ruling. That
8 does not come into the record.
9 If you wish the court exhibits to
10 reflect that, should the need arise at
11 appellate review, it will be there. That is
12 not a part of the record nor will that be
13 considered by the Court and especially it will
14 not be considered by the jury. All right,
15 that's my ruling. Thank you all.
16 MS. COTTER: Will the Court even just
17 say, you know, just say that I wish to read
18 pages 8 to 10, but you are --
19 THE COURT: I have ruled on that.
20 That is not an area that the Court will
21 reexamine. I have already ruled on that.
22 Thank you all.
24 case adjourned to Wednesday, June 2, 2004
25 at 9:30 a.m.)
1081

2 ----------------------------------------X
CIRRO RODRIGUEZ,
3
Plaintiff,
4 Index No.
-against-
5 16482/95
7 Defendant.
----------------------------------------X
9 Third-Party Plaintiff,
Index No.
10 -against- 16482/95
11 FERRARA FOODS and CONFECTIONS, INC.,
12 Third-Party Defendant.
----------------------------------------X
13
851 Grand Concourse
June 2, 2004
15
B E F O R E:
16
HON. NORMA RUIZ, JSC, and a jury of six
17 plus two alternates.
18
19
(Same as previously noted.)
20 -------------------------------------------------
23 the presence of the Court and all counsel
25 THE COURT: We are in chambers for

1082
Proceedings
1 the charge conference that we did not reach
2 yesterday. I have each party's requests to
3 charge.
4 Mr. Durst, did you provide the Court
5 with a revised request to charge and verdict
6 sheet?
7 MR. DURST: Yes, your Honor, I did.
8 THE COURT: Typewritten, I hope.
9 MR. DURST: Yes, your Honor and I
10 have the disk as well.
11 THE COURT: Would you hand it over,
12 please. Do you have a hard copy for me?
14 THE COURT: All right, let me go
15 through quickly my boilerplate charges before
16 we get to your specific requests.
17 When I say quickly, I do mean
18 quickly.
19 1:20, I'm not going to give you the
20 title of that relevant PJI section. 1:21,
21 1:25, 1:40, 1:41, 2:10, 2:70, 2 -- well,
22 actually that's 2:12, 1:23.
23 MS. SCOTTO: That was 1 colon?
24 THE COURT: 23.
25 1:27, 1:22, I will charge them once

1083
Proceedings
1 again as I did preliminarily with regard to the
2 following.
3 You have heard testimony regarding an
4 attorney or an investigator speaking with a
5 witness about the case before the witness
6 testifies here at the trial. The law does not
7 prohibit an attorney or any investigator from
8 speaking to a witness about the case before the
9 witness testifies here at trial nor does it
10 prohibit a lawyer from telling the witness or
11 asking the witness the questions that will be
12 asked at trial.
13 You have also heard testimony that a
14 witness read certain materials pertaining to
15 the case before the witness testifies here at
16 the trial. The law does not prohibit a witness
17 from reviewing written material pertaining to
18 the case before the witness testifies at the
19 trial.
20 We used the official Spanish
21 interpreter so once again even though none of
22 them understands Spanish according to their own
23 information to the Court, I will just
24 nonetheless give that to them again.
25 Okay 1:91, 1:92, the employees who

1084
Proceedings
1 testified for -- well, NEC is not the employee.
2 You had an employee testify?
3 MS. SCOTTO: It was Ed Scoppa's
4 transcript and Miguel Rogel was a non-party.
5 He was our employee at one time.
6 MS. COTTER: So really both former.
7 MS. SCOTTO: Former employee.
8 THE COURT: But at the time that the
9 litigation began they were employed, correct?
11 MS. COTTER: Technically.
12 THE COURT: Ed Scoppa.
13 MS. SCOTTO: He was an employee at
14 the time of the litigation being commenced and
15 at the time of this deposition. And Miguel
16 Rogel was an employee at the time of the
17 occurrence, at the time of the litigation, but
18 not at the time of his deposition.
19 MS. COTTER: I had my executive
20 vice-president, is that technically --
21 THE COURT: He is a party since he is
22 apparently the --
23 MS. COTTER: Then I read a former
24 employee.
25 THE COURT: -- the sole officer for

1085
Proceedings
1 the corporation.
3 THE COURT: You read --
4 MS. COTTER: Terrence Saachi, who is
5 a former employee.
6 THE COURT: 2:277, 2:280 that's pain
7 and suffering. 2:280.1, I am assuming that you
8 are all asking for that boilerplate charge?
10 MS. SCOTTO: Actually, your Honor, I
11 had an objection to 2:280.1.
12 THE COURT: Correct.
13 How old is Mr. Rodriguez?
14 MR. DURST: His date of birth is
15 6/16/76. So at the current time he is 27 years
16 old.
17 THE COURT: His life expectancy?
18 MR. DURST: 46.9 years.
19 THE COURT: That's 2:280.1. 2:280.2
20 I also give this charge on the question of
21 damages.
22 One additional matter on damages.
23 You have heard counsel suggest particular
24 amounts you should award to compensate
25 plaintiff. I charge you that there is nothing

1086
Proceedings
1 in the law which fixes the amount that an
2 attorney may suggest to you as the amount you
3 should award.
4 I remind you that nothing the
5 attorneys say is evidence, including the amount
6 suggested to you in summation. Do not assume
7 that such is the amount awarded by other jurors
8 in similar cases and do not assume that such
9 amounts are those that attorneys not connected
10 to this case would suggest to you if they were
11 evaluating their case. The amount of damages
12 to be awarded is for you to decide based upon
13 the evidence you have heard at the trial, the
14 principles of law I have given to you."
15 1:97. Now, what I do with the
16 verdict sheet is I give the verdict sheet to
17 each and every juror in the box including the
18 alternates. I do that so that each of them
19 will -- certainly the alternates don't feel
20 left out, but I do that so that each juror will
21 be looking at the verdict sheet and hopefully,
22 be following along question by question and
23 more importantly, will be following the
24 instructions at the end of each question.
25 I want them get used to the notion

1087
Proceedings
1 that they are not going to skip to the next to
2 the last page or the last page. I want them to
3 get used to the fact that they will be
4 answering the questions seriatim, all right?
5 If I see that they are not following my
6 instructions, I will remind them while they sit
7 in the box.
8 MS. COTTER: At what point do you
9 give them the verdict sheet?
10 THE COURT: When I get to this
11 particular charge I give them the verdict
12 sheet. I review, just as the charge indicates,
13 I review each question with them question by
14 question. I explain to the sworn jurors that
15 they may take the verdict sheet into the jury
16 room with them, however, only one verdict sheet
17 will be filled out and that one will be filled
18 out by the foreperson.
19 I explain that this will facilitate
20 their deliberative process since, hopefully, it
21 will focus their attention on the question at
22 hand and hopefully they won't be asking the
23 foreperson to repeat the question that they are
24 contending with at the moment. So that's why I
25 do that.
1088
Proceedings
1 And that's where I also again go
2 through PJI 126 in terms of five-sixths votes.
3 They see that their options are either
4 unanimous, six to none or five to one. And I
5 explain to them at that point and then I will
6 reiterate it.
7 So the next charge will be 1:24. Now
8 with regard to this charge, this is the famous,
9 if you do not remember any part of the
10 testimony or you wish to have something read
11 back, this is the point where I will take out a
12 blank jury note. I will show them how it is
13 blank and I will instruct them that the moment
14 that they set pen to paper to send us a
15 question, that jury note must be numbered one.
16 Each time that they have a separate
17 question, they have a separate jury note to us,
18 it has to be marked in chronological order,
19 one, two, three, et cetera. I also indicate
20 that to the extent that the foreperson's
21 handwriting is illegible, if we cannot read
22 what they're asking us, then we are wasting
23 time. So they elect amongst themselves the
24 person with the most legible handwriting to
25 fill out the body of the note.

1089
Proceedings
1 However, the foreperson nonetheless
2 must fill out the administrative part of that
3 note; that is, the number note that it is, the
4 time that the note was generated and his
5 signature. So long as he fills out the
6 administrative part, if his handwriting is not
7 legible we will have a question that has been
8 written by someone who does have a legible
9 handwriting.
10 I also take this opportunity to
11 explain to them that there were many witnesses
12 and we had a number, at least two reporters
13 taking minutes if not three taking minutes, so
14 to the best of their ability if they can, when
15 they are asking us for a readback be as clear
16 as possible as to what their question is, which
17 witness, what area, was it direct, was it
18 cross, direct, redirect or whatever combination
19 or if they just use the attorney's name if they
20 don't remember exactly what area it was. But
21 as detailed as they can be the better it will
22 be for us to try to retrieve that.
23 And they should understand that if
24 they ask the question and they send us a
25 request, that it will take us some time to get

1090
Proceedings
1 to it, but that we will get to it and that we
2 will not address any follow-up notes that have
3 been generated in the time between the first
4 note and the second note.
5 If we have not retrieved the readback
6 information and they have generated a follow-up
7 note, we will give them the readback
8 information first before we address the
9 subsequent note. If they send us a note and a
10 follow-up note is sent out indicating that they
11 have reached a verdict, I will not consider
12 that follow-up note indicating they have
13 reached a verdict unless that follow-up note
14 indicates very clearly they no longer wish the
15 readback and have instead reached a verdict,
16 irrespective of that previously requested
17 readback.
18 Obviously, if the only thing they
19 asked for on the note is the evidence, they
20 will get it immediately. If they combine the
21 evidence with a question which requires
22 readback, we will not -- let me strike that.
23 We will not reconvene if the only thing on the
24 note is a request for evidence. They'll get
25 that immediately.
1091
Proceedings
1 If they couple that request with
2 another request which requires readback, then
3 they'll be waiting until we return to receive
4 the evidence and get the readback. All right?
5 If they decide amongst themselves
6 that they choose to have lunch while they
7 deliberate, that's the decision that they make
8 and if that's how they want to spends their
9 lunch hour by deliberating as well, that's
10 their decision. I won't interfere with that.
11 However, they'll be informed that if they are
12 deliberating during our luncheon recess, if
13 they send out a note during the luncheon recess
14 and the only person they see in the courtroom
15 is Luis, our court officer, don't be surprised
16 because we are at lunch and we will take that
17 up as soon as -- you need some water?
18 MS. COTTER: No, I'm okay.
19 THE COURT: You are making me
20 nervous. I'm looking at your face getting
21 flushed here.
22 MS. COTTER: No, it's a lot cooler in
23 here today than it was last night.
24 THE COURT: So we won't be addressing
25 any readback during our luncheon recess. As

1092
Proceedings
1 soon as we get back from lunch we will address
2 it. All right.
3 So 126, five-sixth verdict. 1:29.
4 Now, we were all in agreement that the
5 alternate jurors, and I know this was a
6 question before, but actually at this point,
7 once the six jurors retire for their
8 deliberation, as far as I understand all of the
9 alternates are discharged.
11 THE COURT: Because obviously the
12 jurors have commenced their deliberative
13 process, I don't know if they can then take in
14 an alternate if anything happens to the six
15 sworn jurors and bring the alternate up to
16 snuff, so to speak.
17 MS. COTTER: There is only one
18 alternate left at this point.
19 THE COURT: Let's hope that that's
20 the last alternate and that alternate is still
21 available tomorrow.
22 Okay, 1:28, conclusion. 1:105,
23 actually before 1:105, 1:101. 1:105 and 1:101
24 is merely a supplemental charge in the event
25 that there is an error in the charge, I have

1093
Proceedings
1 never had to do this in a civil matter. In the
2 unlikely event 1:100, that's the Allen charge.
3 Let me take up your individual
4 requests. Now, I understand because Ms. Cotter
5 it's my information that you may very well be
6 close to giving birth any minute now.
7 MS. COTTER: No, no, I feel fine. I
8 feel fine.
9 THE COURT: Good. You have dropped;
10 is that correct? You were due next week,
11 right, technically?
12 MS. COTTER: I am due a week from
13 Saturday but I didn't say I dropped. I think
14 your clerk Steve just asked me, you know, if I
15 had gotten lower. I don't think I have, but...
16 THE COURT: So you don't feel that
17 you are on the verge?
18 MS. COTTER: No, I feel fine. I
19 think we should be able to sum up today as long
20 as we can get through everything.
21 MS. SCOTTO: After this there is
22 still a couple of our issues.
23 THE COURT: We are going to get to
24 them as quickly as we can. So let's -- and I
25 understand that the three of you made an

1094
Proceedings
1 agreement outside while you were waiting for me
2 to come back from my hearing this morning.
3 MS. SCOTTO: Yes.
4 MR. DURST: As to the length of our
5 summations.
6 THE COURT: No, with regard to the
7 requests to charge.
8 MS. SCOTTO: Yes, your Honor. We had
9 a suggestion if you wouldn't mind if we could
10 take each charge one by one and then just list
11 out our objection for you on the record very
12 briefly and then whatever you choose to charge
13 will be the charge.
14 THE COURT: Well, why don't we do it
15 this way. Let's take the plaintiff's requests
16 first. To the extent that certain of these,
17 all right, which are the ones that have not
18 been covered by the Court and which are the
19 ones that have not been covered by the Court
20 that there are any objection to.
21 Why don't we do this. Why don't we
22 just highlight the ones that there are
23 objections to and Ms. Cotter, you have a copy
24 of his requests and so do you, Mrs. Scotto.

1095
Proceedings
1 THE COURT: Why don't we just focus
2 on ones where there is an objection and just
3 address those quickly.
4 MS. COTTER: I have conferred with
5 Ms. Scotto and she has one objection on her own
6 and then we have several joint objections to
7 the plaintiff's requests.
8 THE COURT: Do you have any since you
9 are the defendant separate and apart from
10 Ms. Scotto?
11 MS. COTTER: I don't believe so. 1:7
12 is addressed specifically towards me, but I
13 understand Ms. Scotto joins in that.
14 MS. SCOTTO: Yes.
15 MS. COTTER: Do you want me to list
16 them?
17 THE COURT: 1:77. What else?
18 MS. COTTER: This is a list of my
19 objections to Mr. Durst's charges. 1:77, 1:78,
20 2:15, 2:16. 2:120 and 2:135, primarily because
21 there is not a manufacturer in the case.
22 THE COURT: What else?
23 MS. COTTER: 2:56. With respect to
24 2:141 and 2:141.2 --
25 THE COURT: 2:141?

1096
Proceedings
1 MS. COTTER: And 2:141.2, I want it
2 drafted as I drafted it, which is very similar
3 to the PJI, in my request to charge. I object
4 to it the way it's drafted by Mr. Durst.
6 MS. COTTER: 2:280.1. I believe
7 plaintiff's counsel has withdrawn or is willing
8 to withdraw 2:275.1.
10 I will also withdraw --
11 THE COURT: Just one minute.
12 What else?
13 MS. COTTER: 2:284 I object to.
14 MR. DURST: I will withdraw that.
15 MS. COTTER: And I also object to
16 2:285, 2:291 and 2:301. With respect to --
17 THE COURT: Just one second. 291 and
18 that was what was the other one?
19 MS. COTTER: 2:301. With respect to
20 my objection to 1:77, which is a request by
21 Mr. Durst for a charge regarding missing
22 documents, to the extent that those documents
23 were demanded, we provided a response and
24 attached documents so there is no reason that
25 should be in there. And I wonder if Mr. Durst

1097
Proceedings
1 would be willing to withdraw that one as well.
2 MR. DURST: Not a chance.
3 THE COURT: What are you referring to
4 in that particular charge?
5 MR. DURST: All invoices.
6 THE COURT: NEC's failure to provide
7 invoice, cards, or sales documents showing
8 purchase of new dough mixers from Tonnaer.
9 MR. DURST: You just produced the
10 reconditioned machines.
11 MS. COTTER: Well, my opposition to
12 that is twofold. First, throughout the
13 litigation Mr. Durst has represented that this
14 machine was sold to Ferrara Foods used.
15 Secondly, to the extent that demand was made
16 that was responded to. And there is no failure
17 to produce documents here. We have produced
18 anything we had.
19 MR. DURST: I have the demand right
20 here which I would like to mark.
21 THE COURT: Mr. Durst, you have to
22 sit up so that the court reporter can here you,
23 all right?
24 MR. DURST: I have the discovery
25 demand here for those documents which was

1098
Proceedings
1 not -- it was responded to. But they didn't --
2 and they responded as if they were providing
3 all documents, but in fact, they only provided
4 documents for used machines. The document
5 request dated February 18, of 1998, requested
6 all sales, all invoices between National
7 Equipment and any entity using Tonnaer as part
8 of their name and all sales contracts between
9 National Equipment and any entity using
10 Tonnaer, computer printout of all business
11 transactions between National Equipment and any
12 entity using Tonnaer as part of their name.
13 Never was it limited, and I would like to
14 possibly mark this as a Court exhibit.
15 THE COURT: We are not doing that
16 here, sir.
17 MR. DURST: Okay. And that document
18 was responded to by producing the six documents
19 which are in evidence and nothing more. The
20 witness testified on the stand that, in fact,
21 he never --
22 MS. COTTER: Do you have a copy?
23 THE COURT: Let him finish.
24 MR. DURST: He considered the new
25 documents -- the invoices concerning new

1099
Proceedings
1 machines to be irrelevant. So he never
2 produced those.
3 MS. COTTER: Do you have a copy of
4 our response with you?
5 MR. DURST: I don't, but I do know
6 that you produced the six records and nothing
7 more.
8 MS. COTTER: Right. I believe we had
9 nothing more and that was responsive to your
10 demand at the time in 1998. Unfortunately,
11 since I have just been provided with a copy of
12 these requests this morning, I don't have a
13 copy of our response with me. So to the extent
14 the court needs me to, I can try to have
15 someone fax it over.
16 MR. DURST: In addition, any new
17 machines certainly would be documented that
18 would be relevant to this case. The witness
19 produced only used machine records.
20 MS. COTTER: Not if we don't have any
21 documents regarding sales of new machines.
22 MR. DURST: He did not testify that
23 you didn't have any. He testified he didn't
24 think they were relevant.
25 MS. SCOTTO: Your Honor, I just may

1100
Proceedings
1 want to add that I don't have it with me, but I
2 have seen a copy of the defendant's response.
3 In addition to the six cards I remember there
4 being a computer printout, but I don't remember
5 what it referred to but there was more than the
6 six cards.
7 THE COURT: Understand this. This
8 does not bode well for our -- we are summing up
9 this afternoon. It's 2:21 and at this point we
10 are not going to be done by 1 o'clock. All
11 right. What else?
12 MS. COTTER: That was the end of my
13 objections.
14 THE COURT: I'm reserving decision on
15 that.
16 Go ahead, what else?
17 MS. COTTER: On all the objections or
18 on that one?
19 THE COURT: Yes.
20 MS. COTTER: And then I believe
21 Ms. Scotto had one separate objection in
22 addition.
23 MS. SCOTTO: May I list my
24 objections?
25 THE COURT: That was the only

1101
Proceedings
1 objection you had, Ms. Cotter, with regard to
2 his request?
3 MS. COTTER: No, I had the list that
4 we just went through.
5 THE COURT: But what else do you want
6 to articulate for the record with regard to the
7 list? I want to hear your objection and then I
8 will hear Ms. Scotto's objection, since this
9 was the only one that you have separate and
10 apart from her.
11 MS. COTTER: 1:77, failure to produce
12 the documents, we just addressed that. 1:78
13 with respect to a stipulation with respect to
14 the amount of medical bills being $18,183. We
15 have stipulated to that, however, that is
16 something the Court can add to the verdict at
17 the end of the trial. You know, the jurors
18 need not consider that and be charged on it
19 separately. That's my objection to that.
20 MR. DURST: My argument is that
21 that's evidence in the case, it's just
22 stipulated evidence and therefore the jury is
23 entitled to hear that, in fact, there were
24 $18,183 in medical bills. This should be
25 filled into the verdict sheet by the Court and

1102
Proceedings
1 the jury would then have that verdict sheet
2 with that amount filled in already.
3 THE COURT: Okay, what else?
4 MS. COTTER: Do you want me to just
5 go through them?
6 THE COURT: Yes.
7 MS. COTTER: 2:15, common law
8 standard of care, defendant having special
9 knowledge with regard to the engineering
10 expertise of National Equipment Corporation, I
11 don't see the need for that charge. Although
12 Arthur Greenberg testified that he has an
13 engineering degree, I don't see the relevancy
14 with respect to giving an instruction to the
15 jury on the defendant having special
16 engineering knowledge. It's just not relevant
17 in the case.
18 With regard to 2:16 --
20 Mr. Durst?
21 MR. DURST: I think that charge is
22 specifically geared towards defendants with
23 engineering expertise or expertise in a
24 particular subject and I believe the witness
25 had such expertise. And it's relevant to --

1103
Proceedings
1 make the charge applicable.
2 THE COURT: I'm going to reserve
3 decision on that one.
4 MS. SCOTTO: Judge, I have been
5 joining in these requests as Ms. Cotter said.
6 THE COURT: All right, but I will get
7 to you as well. Actually, you know what, let
8 me hear you as well. I just want to try to
9 keep it as brief as possible.
10 MS. SCOTTO: Should I start at the
11 beginning or?
12 THE COURT: Well, you did not join in
13 on 177, correct?
14 MS. SCOTTO: I did want to join in
15 that.
16 THE COURT: Anything -- well, that's
17 not your charge, that doesn't apply to you.
18 MS. SCOTTO: But as a third-party
19 defendant I step into the shoes of the direct
20 defendant, so I would like to join in this
21 request.
22 THE COURT: What about 178?
23 MS. SCOTTO: 178 I join in that
24 request as well. That matter should not be
25 before the jury.

1104
Proceedings
1 THE COURT: Why?
2 MS. SCOTTO: Because the parties have
3 stipulated to it and after the verdict is
4 rendered the Court can just add it on. That's
5 typically the way it's done.
6 THE COURT: Okay.
7 MS. SCOTTO: I did stipulate to that
8 amount.
9 THE COURT: Both of you stipulated.
10 MS. SCOTTO: 2:215, I join in the
11 request of the defendant for the reason that
12 she gave.
13 THE COURT: Next.
14 MS. COTTER: 2:16, common law
15 standard of care customary business practices,
16 with regard to plaintiff's expert Igor Paul, I
17 don't see the need for this charge. The jury
18 heard his background and his credentials and
19 his testimony as to standards in the industry
20 enough, they don't need a separate charge on
21 that.
22 MS. SCOTTO: I would join in that
23 request as well. I don't think this witness
24 charge was intended for -- it was not intended
25 for codes or model codes. It was intended for

1105
Proceedings
1 customs and practices in the industry and
2 that's not what this is relating to.
4 MR. DURST: Your Honor, I believe
5 this charge is specifically geared towards
6 standard of care in the industry and that is
7 reflected as the witness testified to body
8 standards in the industry which he testified
9 to.
10 THE COURT: I'm reserving decision on
11 that. That was which one, 2:16, right?
12 MS. SCOTTO: Yes.
14 THE COURT: Next.
15 MS. COTTER: 2:120, products
16 liability in manufacturers liability to remote
17 consumer for negligence. And also 2:135
18 manufacturers liability to remote consumer for
19 negligence dash duty to warn. These are both
20 applicable to a manufacturer. There is no
21 manufacturer as a defendant in this case. My
22 client is an alleged distributor/seller. So
23 these charges 2:120 and 2:135 are not
24 applicable to the instant case.
25 MS. SCOTTO: I join in that request.

1106
Proceedings
2 MR. DURST: I believe the manufacture
3 term should just be changed to seller and I
4 believe that was established, that's just
5 established law in New York that if you are a
6 seller you are responsible the same as a
7 manufacturer.
8 THE COURT: Can you raise your voice,
9 please?
10 I'm going to look at both of these
11 charges, but I believe I may agree with both
12 defendant and third-party defendant with regard
13 to these two charges as they apply to
14 manufacturers and there is no language there
15 with reference to a distributor.
16 The next one was 2:56?
17 MS. COTTER: I see it, okay. 2:56
18 was the next objection, risk assumed under
19 direction of a superior, I don't see the need
20 for that. The jury has heard -- I believe
21 plaintiff wants it with respect to Miguel Rogel
22 being plaintiff's supervisor. Plaintiff wants
23 Miguel Rogel's name inserted into the charge
24 and I think the jury has enough common
25 knowledge within the purview of their knowledge

1107
Proceedings
1 to decide all issues concerning plaintiff's
2 potential comparative negligence in this case
3 and they don't need this extra charge.
4 MS. SCOTTO: Your Honor, with respect
5 to that specific charge there is no evidence
6 that anyone ever told plaintiff to stick his
7 hand into the machine with the blades turning
8 and that's what this charge concerns. I would
9 ask that you not give it.
11 MR. DURST: Mr. Rodriguez testified
12 that not only was he assigned to work on that
13 machine when it was in the up tilting position,
14 but also that man before him who was his
15 superior on the job, also had told him to do it
16 exact same way that he was doing it. So you
17 had both Mr. Rogel and the person before him
18 who told him how to do it, both telling him how
19 to do it, two superiors.
20 MS. SCOTTO: If I can just add to
21 that. No one was his supervisor other than
22 Miguel Rogel and the plaintiff's testimony was
23 that he saw someone else remove dough that way,
24 not that anyone ever instructed him to do it
25 that way and the person was a co-worker and

1108
Proceedings
1 equal level as the plaintiff.
2 MR. DURST: Not according to
3 Mr. Rogel. He said that the man was a superior
4 to Mr. Rodriguez.
5 MS. SCOTTO: I disagree with your
6 recollection of the testimony.
7 THE COURT: I'm going to review 2:56
8 and I may be inclined to give that particular
9 charge based upon the evidence that is before
10 the jury.
11 The next one is 1:141.
12 MS. COTTER: 2:141.
13 THE COURT: I'm sorry, 2:141.
14 MS. COTTER: Yes, that's a strict
15 liability charge, your Honor. Obviously, I do
16 want to give it in this case, but I have
17 drafted it much more in alignment with what is
18 in the PJI. I have an objection to the way
19 it's been revised by Mr. Durst. He has added
20 on page 3 of his request to charge a paragraph
21 which reads, "It is not necessary that you find
22 that National Equipment Corporation sold the
23 dough mixer directly to Ferrara Foods, it is
24 only necessary that you find that National
25 Equipment was in the distribution chain of this

1109
Proceedings
1 particular dough mixer." It goes on to say,
2 "In this case the plaintiff alleges that
3 National Equipment purchased the dough mixer
4 from Tonnaer and then sold the dough mixer in
5 the United States to another purchaser."
6 I would object to that paragraph. I
7 have drafted it in my request to charge
8 differently and throughout the litigation
9 again, in his interrogatory responses and his
10 complaint, plaintiff's counsel has described
11 this as a direct sale to Ferrara Foods. And
12 throughout the trial and throughout the
13 litigation, I have his interrogatory responses
14 here which states that the machine was
15 allegedly sold by National Equipment to Ferrara
16 Foods. It should be outlined in the charge
17 language as a sale from National Equipment to
18 Ferrara Foods.
19 Also, at the end of Mr. Durst's
20 revision of 2:141 in the last paragraph on
21 page 3 of his request to charge, he uses the
22 words "whether the mixer was sold new or used."
23 Again, he has proceeded in this litigation as
24 if the mixer was sold used and it's really an
25 uncontested issue. Third-party defendant's

1110
Proceedings
1 witness Ed Scoppa Ed Scoppa said that it was
2 sold used. It's been an understanding
3 throughout the litigation that it was sold used
4 so I would object to those words "whether it
5 was sold new or used." And I will ask that
6 2:141 be instructed as set forth in my request
7 to charge.
8 With respect to 2:141.2 I would make
9 the same request that it be set forth as I have
10 outlined in my request to charge.
11 MS. SCOTTO: I have the same
12 objection as Ms. Cotter with respect to those
13 two sections and I also, in my request to
14 charge, list out the way that I believe it
15 should be provided to the jury.
16 MS. COTTER: Did your Honor want to
17 see plaintiff's response to interrogatories?
18 THE COURT: Just one second. With
19 regard to 2:141, Mr. Durst?
20 MR. DURST: Yes, your Honor. I would
21 request that the standard language be used
22 throughout from 2:141 with a specification for
23 the design defect language rather than the
24 manufacturing defect language. Standard
25 language with the insert where it says the

1111
Proceedings
1 plaintiff claims, and I have written out my
2 claim there.
3 And then in addition to that, not in
4 place of it but in addition, I request this
5 language with regard to instructing the jury
6 that a distributor is in the same shoes as a
7 manufacturer. Now, the fact that they were
8 arguing that they -- the plaintiff is
9 restricted to saying that if the machine was
10 not sold by National Equipment to Ferrara
11 directly, that was never argued from the
12 summons and complaint on.
13 In the complaint we state that the
14 machine was sold by National Equipment
15 Corporation to another. And all we have to
16 show is that they are in the direction chain.
17 Now, at one point we were told that Ferrara
18 purchased it directly from NEC and we believe
19 that may well be the case. But that is not
20 essential to prove the case; that if it was
21 sold by Tonnaer and we sued Tonnaer for
22 something that happened four purchases down the
23 line, we would still be permitted to do that.
24 The exact same situation applies to
25 the distributor or any other seller who is more

1112
Proceedings
1 than a casual seller who is in the business of
2 selling these machines. If they sold it, put
3 it on the market and then it passed through 20
4 different hands and then causes injury to the
5 21st user and through a defect when it left
6 their hands, they are responsible under the law
7 of New York. And to try to limit this which
8 the defendant -- which they seem to be doing,
9 to proving that there was privy between
10 National Equipment and Ferrara, would be a
11 gross misstatement of the law.
12 On the appeal we argued that National
13 Equipment was the distributor. It was
14 irrelevant that it was sold -- whether it was
15 sold to Ferrara or sold to another and that
16 other then sold it to Ferrara. It didn't
17 matter. It came into this country through
18 National Equipment, as Mrs. Tonnaer testified,
19 and it came in in a defective condition and was
20 sold in a defective condition. And it has not
21 been changed, there was never an enclosure over
22 the hopper and it was sold that way by National
23 Equipment.
24 So to limit would be error and the
25 Court may wish to prune the language, it may be

1113
Proceedings
1 overly long, but I think the jury is entitled
2 to know that it is not necessary that they sold
3 the machine directly to Ferrara Foods, only
4 necessary that they were in the distribution
5 chain. Furthermore, the law is quite clear,
6 taking the language directly from the case that
7 if it is reasonably probable, not merely
8 possible or evenly balanced that NEC was a
9 distributor or seller, whether it was new or
10 used, and the machine contained a defect when
11 it left their hands which was a substantial
12 factor, they are liable under strict liability.
13 That is specifically language from the case
14 law, and to lead the jury otherwise would be an
15 error.
16 THE COURT: All right, we are going
17 to have to stop here. It is the lunch hour. I
18 don't think that we are going to be able to
19 have summations this afternoon at the rate that
20 we are going. I have yet to conclude the
21 charge conference. We have been working
22 essentially without break except to accommodate
23 counsel. So I am taking your specific
24 objections to the various requests seriously.
25 And I am not going to allow you to go forward

1114
Proceedings
1 with your summations absent my charge
2 conference. As you can see, I am reserving
3 decision on some, I need to think about some of
4 these charges. So I appreciate the fact that
5 Ms. Cotter, you may be due any second now.
6 MS. COTTER: No, I'm not a problem
7 here, Judge.
8 THE COURT: I'm not going to --
9 MS. COTTER: Someone is looking at me
10 and telling you misrepresentations of the
11 situation.
12 THE COURT: I'm not going to rush
13 this case, be it with your summations, when we
14 have not concluded the charge conference, I'm
15 not doing that. So we are going to conclude
16 our charge conference. We are going to have to
17 ask our jurors to come back tomorrow morning
18 because frankly, once you are done with the
19 charge conference I still have to stay behind
20 and do work. All right. I was here until 6:30
21 last night working on this case.
22 MR. DURST: But Judge, beyond this we
23 don't really have much.
24 THE COURT: Mr. Durst, do you not
25 understand what I just said?

1115
Proceedings
1 MR. DURST: I do, your Honor. I
2 understand it, but unfortunately, it is really
3 kind of jeopardizing the progress of the case.
4 THE COURT: Jeopardizing what?
5 MR. DURST: The conclusion of the
6 case.
7 THE COURT: Would you prefer for us
8 to jeopardize the outcome of this case to your
9 client's detriment?
10 MR. DURST: But you would have
11 tonight to consider the jury charge.
12 THE COURT: Am I not supposed to have
13 an evening to myself? How much work am I
14 supposed to take home every single night? If
15 that were the case, I would be working 24 hours
16 a day, seven days a week, 365 days a year if
17 the attorneys that came before me had their
18 druthers. So you get to take vacation. You
19 get to go out to dinner. You get to have a
20 weekend, but I don't, is that what you are
21 suggesting?
22 MR. DURST: We can conclude our
23 summations in half an hour each.
24 THE COURT: Are you listening to what
25 I'm saying, Mr. Durst? Then please leave. We

1116
Proceedings
1 are at luncheon recess.
2 MS. COTTER: What time should we be
3 back?
4 THE COURT: Downstairs in the
5 courtroom at two.
8 p.m.)
15 gentlemen, have a seat. Welcome back. I trust
16 everyone had a very good weekend, successful
17 weekend, but unfortunately, as you figured out,
18 we are now down to one alternate juror.
19 Sworn juror number five -- reminds me
20 of the Agatha Christie movie, Ten Little
21 Indians -- sworn juror number five called in
22 yesterday to let us know that he was ill and
23 would not be able to return for a minimum of
24 two weeks, which is why we have asked alternate
25 number one to take the seat of juror number

1117
Proceedings
1 five, sworn juror number five. All right.
2 So obviously, Ms. White, you are now
3 juror number five. All right, ma'am? Okay.
4 Which of course, Mr. Caputo, means that you,
5 sir, need to remain in the best of health. As
6 a matter of fact, if there were a place for you
7 to sleep in the building overnight I might be
8 inclined to ask you to do that. Just kidding,
9 of course.
10 So ladies and gentlemen, obviously
11 I'm going to ask each and every one of you to
12 please be very careful this evening going and
13 coming. I know there are thunderstorms
14 predicted for this evening, et cetera. So of
15 course everyone will, as soon as you get home,
16 remain home for the balance of the evening,
17 correct? All right.
18 We were indeed -- counsel and the
19 Court as I indicated to you yesterday, were
20 involved in legal issues and that was the case
21 for the entire most of yesterday. Today I had
22 other legal issues that I dealt with and I
23 actually have one last item that I have not
24 finished from this morning that I need to
25 finish this afternoon.

1118
Proceedings
1 I thought we would be concluded with
2 everything that I had to do from this morning
3 by this afternoon, but regrettably, I have not
4 been able to juggle the way I thought I would
5 be able to juggle. So my profoundest apologies
6 to you, ladies and gentlemen. All the best
7 laid plans, as they say. But at this point, I
8 promise you that we will be concluded with this
9 case tomorrow. All right.
10 Tomorrow the attorneys will have
11 their summations for you and I will charge you
12 on the law. So therefore, I'm going to ask you
13 all to be here promptly at 9:30. Officer
14 Guzman will take your luncheon orders as soon
15 as you arrive. So you will be having lunch
16 tomorrow and we anticipate, as I say, the
17 summation and my charge to you in the morning.
18 You will have your lunch and you will
19 deliberate as soon as I'm concluded with my
20 charge to you.
21 So you can anticipate a full day
22 tomorrow. And depending on your deliberations
23 if you are not concluded by a quarter to five
24 tomorrow, then you will return on Friday to
25 conclude your deliberations. Obviously, there

1119
Proceedings
1 is no way for me to know today what tomorrow
2 will bring or whether you will successfully
3 complete your deliberative process by a quarter
4 to five tomorrow afternoon. So I'm just
5 advising you in terms of the scheduling needs
6 that if you are not concluded tomorrow, that
7 you will be returning Friday. All right,
8 everyone?
9 That being said, I'm going to ask
10 that you take the balance of the afternoon and
11 come back tomorrow at 9:30. Ladies and
12 gentlemen, I do anticipate you will have a case
13 tomorrow. So again, my apologies, I thought I
14 would be done with my matters in the morning
15 and I was not. So we will see you tomorrow
16 morning at 9:30. It's a beautiful day right
17 now, the sun is currently out, so maybe you can
18 take advantage of it on your way home. All
19 right, everyone?
20 So please do not discuss the case
21 among yourselves or with anyone else. Do not
22 allow anyone to discuss it with you. In the
23 event anyone attempts to do so, you bring it to
24 my immediate attention. Please don't speak to
25 any parties, attorneys or to witnesses and

1120
Proceedings
1 don't visit the area in question.
2 All right, everyone, that being said,
3 have a wonderful balance the afternoon, a
4 wonderful evening at home tonight and we will
5 see you tomorrow morning at 9:30.
7 THE COURT: Counsel, we will resume
8 the charge conference upstairs in my chambers
9 all right? I would like to get this done as
10 expeditiously as possible so that the Court can
11 get to work. All right?
14 the presence of the Court and both counsel
16 THE COURT: We were up to -- did we
17 get to 2:141.2?
18 MS. COTTER: Yes, we had just
19 finished that one.
20 THE COURT: Please read back the last
21 thing we did.
22 (The record is read by the reporter.)
23 THE COURT: 2:141.2. All right,
24 Ms. Cotter you had noted an objection to that?
25 MS. COTTER: Yes. In Mr. Durst's

1121
Proceedings
1 request to charge he just put -- inserted the
2 words "dough mixer" I assume to the standard
3 charge. I would just request that 141 --
4 2:141.2 be set forth as I put in my request to
5 charge. This is the part of the request to
6 charge that should involve substantial
7 modification and you know --
8 THE COURT: His request is to insert
9 the word dough mixer where it indicates "state
10 product." What is your objection to that?
11 MS. COTTER: It's not an objection to
12 the words "dough mixer," so I guess it's not an
13 objection per se.
14 THE COURT: That's all that we have
15 here on that request. What about you,
16 Ms. Scotto?
17 MS. SCOTTO: I was going to ask that
18 if you read the way I have written in my
19 charge --
20 THE COURT: The only request that he
21 has is to insert the word "dough mixer" where
22 the paren has "state product." You have an
23 objection with regard to the insertion of the
24 word "dough mixer" where it says "state
25 product" at 2:141.2?
1122
Proceedings
1 MS. SCOTTO: No. If the Court is
2 going to read the charge the way that it
3 appears in the PJI then that seems to be the
4 appropriate word where the charge says "state
5 product."
6 MS. COTTER: I would just note in the
7 annotation that they talk about substantial
8 modification during that charge. So perhaps --
9 THE COURT: During what charge?
10 MS. COTTER: Under 2:141.2 in the
11 annotations they talk at length about
12 substantial modification, so to the extent the
13 Court is inclined as we request to follow
14 Robinson versus Read, as outlined in my request
15 to charge, I think under or within 2:141.2
16 would be an appropriate place to add the
17 substantial alteration language.
18 MS. SCOTTO: I would join in that
19 request.
20 THE COURT: All right, the next item
21 is 2:280.1, with regard to damages.
22 MS. COTTER: This one pertains to
23 loss of enjoyment of life and I don't recall
24 plaintiff testifying to loss of enjoyment of
25 life specifically. Now, he did testify, you

1123
Proceedings
1 know, about his attempts to find work, but with
2 respect to just generally loss of enjoyment of
3 life, I do not believe he testified to that.
4 MS. SCOTTO: It's my recollection of
5 the plaintiff's testimony that he said before
6 the accident happened he either stayed home or
7 he saw friends and that's the same thing that
8 he does now. So I don't believe this charge is
9 applicable.
11 MR. DURST: Well, not to state the
12 obvious, but at a minimum certainly he said he
13 couldn't play guitar anymore.
14 MS. SCOTTO: I believe that came out
15 during Albert Griffith's testimony. I don't
16 recall the plaintiff offering that.
17 THE COURT: To the extent that there
18 is evidence for the jurors to consider this
19 particular -- the facts surrounding this
20 particular charge, that charge will be
21 provided.
22 2:275.1.
23 MS. SCOTTO: That was withdrawn. By
24 plaintiff's counsel.
25 MR. DURST: Yes, that's withdrawn. I

1124
Proceedings
1 suppose it could be taken care of in another
2 fashion.
3 THE COURT: In what other fashion?
4 This is the apportionment section, no?
6 THE COURT: So what other fashion are
7 you suggesting it would be taken care of?
8 MR. DURST: I'm with you, I don't.
9 THE COURT: I want you to tell me;
10 you're the one that's withdrawing this
11 apportionment charge.
12 MR. DURST: I thought it belonged,
13 but maybe in the wording that was set out it
14 was indicating that there is a third non-party
15 that might be in the case, a non-party that you
16 would apportion some responsibility to. And I
17 thought that part didn't apply. But the rest
18 of it certainly has to be explained in some
19 fashion to the jury that we have two
20 defendants, one is a third-party defendant, one
21 is a defendant and the responsibility must be
22 apportioned amongst them and the plaintiff.
23 MS. SCOTTO: I don't think the
24 defendants should be lumped together. There is
25 a defendant and a third-party defendant and I

1125
Proceedings
1 agreed with plaintiff's counsel, it has to be
2 clear that there is the option of finding
3 liability on the part of the plaintiff. I
4 don't think this charge is written for our
5 circumstances.
6 MS. COTTER: Right, it would really
7 have to be redrafted and particularized to our
8 facts.
9 MR. DURST: But redrafted must be
10 conveyed at some point to the jury that there
11 are different defendants.
12 THE COURT: Which is the other place
13 where you claim, Mr. Durst, that that will be
14 before the jury? What other charge?
15 MR. DURST: I could not find one and
16 that's why I put that in. It was only among
17 conversations that you decided that part, may
18 be the portion referring to the non-party,
19 certainly should not be in. The rest of it
20 seems appropriate.
21 MS. SCOTTO: When I read this section
22 my initial impression was where it talked about
23 a non-party that perhaps the plaintiff meant
24 the third-party defendant because he didn't
25 have a direct claim against them. I just think

1126
Proceedings
1 this would be very confusing.
2 MR. DURST: I believe 275, 2:275
3 apportionment between defendants, I believe
4 that seems to cover what 275.1 covers and maybe
5 it was my mistake in not just referring to 275.
6 MS. COTTER: Actually my request
7 under 2:141, the last paragraph it basically
8 addresses that.
9 THE COURT: Let's not do this,
10 please. I will get to your specific requests.
11 We are still working with the plaintiff's, all
12 right. So you are suggesting, Mr. Durst, that
13 you inadvertently wrote in your request to
14 charge 2:275.1 intending to write 2:275; is
15 that what you are saying?
17 THE COURT: Again 2:275 refers to
18 defendants.
19 MS. SCOTTO: Your Honor, may I note
20 my objection. The first comment says that this
21 charge is meant to be used where there is no
22 issue as to the plaintiff's fault. And here
23 it's clear that we have been alleging that the
24 plaintiff caused his own accident. So --
25 THE COURT: We are still, again, on

1127
Proceedings
1 the plaintiff's request to charge.
2 MS. SCOTTO: Didn't he just suggest
3 2:275?
4 THE COURT: We are still on his
5 requests to charge. Do you have an objection
6 to his request to charge?
7 MS. SCOTTO: Yes.
8 THE COURT: I will get to your
9 respective requests and then we will figure out
10 where we are going from there.
11 So 2:275.1, again, Mr. Durst, are you
12 withdrawing that?
14 THE COURT: And in its place?
15 MR. DURST: 2:275. And I included
16 that special verdict sheet on my verdict sheet,
17 the one that is referred to at 2:275.
18 THE COURT: All right you object --
19 with regard to 2:275, Ms. Cotter?
20 MS. COTTER: You can go ahead.
21 MS. SCOTTO: May I go first, your
22 Honor?
23 THE COURT: I want to go with
24 Ms. Cotter since she is the defendant and then
25 I will get to you.

1128
Proceedings
1 MS. SCOTTO: I'm sorry.
2 MS. COTTER: Your Honor, I would
3 object to 2:275, I'm reading the first
4 paragraph of the comment, which states that
5 this charge is meant to be used where there is
6 no issue as to plaintiff's fault.
7 Here clearly both of us, both
8 defendants, primary defendant and third-party
9 defendant, are alleging that plaintiff was at
10 fault in part or in whole for his accident, so
11 I don't think it's the right charge.
12 THE COURT: Okay. Ms. Scotto?
13 MS. SCOTTO: Your Honor, I also agree
14 that it's not the correct charge and the
15 comment continues that if there is an issue as
16 to the plaintiff's degree of fault and that
17 becomes part of the apportionment, that the
18 charge to use is 2:36.
19 MR. DURST: But 2:36 specifically
20 refers to the bifurcating trial. So
21 therefore --
22 THE COURT: Did you read 2:36
23 thoroughly?
24 MR. DURST: Well, the topic, it says
25 comparative negligence dash bifurcating trial.

1129
Proceedings
1 I'm sure it can be modified to be appropriate
2 so either one of those -- it's fine with me as
3 long as it's clear that there is an
4 apportionment between defendants that must be
5 paid.
6 THE COURT: Okay, 2:284 was
7 withdrawn. Next is 2:285.
8 MS. COTTER: Yes, that we briefly
9 discussed earlier.
10 THE COURT: That's the $18,000
11 medical expense item.
13 MS. COTTER: Yes. We have stipulated
14 to that amount of past medical expenses
15 $18,183. I don't see the need for a separate
16 charge on that amount. The Court can add that
17 amount to any verdict.
18 MS. SCOTTO: I agree with Ms. Cotter.
20 MR. DURST: Your Honor, I would
21 suggest that that charge could be modified to
22 simply --
23 THE COURT: Do me a favor, Mr. Durst.
24 The court reporter is over here. You are
25 diagonally across from her and you are speaking

1130
Proceedings
1 with your face in your briefcase. You need to
2 speak up so that she can see and hear you, all
3 right? Continue.
4 MR. DURST: The amount of the medical
5 expenses should be in front of the jury. The
6 fact that we have stipulated to the amount is
7 great, but that doesn't mean to withdraw it
8 from their information in the case. And I
9 would think that 2:285 could be modified at
10 that point to state that the plaintiff and the
11 defendants are -- all parties have stipulated
12 what the past medical expenses are certainly,
13 but that certainly is not going to preclude
14 them from awarding future medical expenses.
15 MS. SCOTTO: Your Honor, I think that
16 might be prejudicial to put that in front of
17 them. The fact that they hear that we
18 stipulated to the amount could be taken as a
19 stipulation --
20 THE COURT: A stipulation of the
21 facts. You have stipulated to many other
22 facts.
23 MR. DURST: For them not to hear
24 about medical expenses --
25 THE COURT: To the extent that you

1131
Proceedings
1 stipulated to that amount of money in terms of
2 the medical expenses, we have 1:78 still before
3 us, which refers to stipulation of facts.
4 MR. DURST: This is true.
5 But that also, your Honor, refers to
6 future medical expenses.
7 THE COURT: What refers to future
8 medical expenses?
9 MR. DURST: 2:285.
10 THE COURT: Yes, and?
11 MR. DURST: And the doctor testified
12 that the operation that would give him a
13 lobster claw that would be the only option
14 available to him in the future, would cost
15 $250,000. And we are certainly going to be
16 making a claim and an argument that he should
17 be accorded that opportunity to take advantage
18 of that operation.
19 THE COURT: So you are asking for
20 2:285 with regard to the reference to future
21 medical expenses for future care, future
22 surgery?
24 THE COURT: Okay, Ms. Cotter on that
25 note?
1132
Proceedings
1 MS. COTTER: Well, my first question
2 is, is counsel going to be asking for specific
3 language as to future surgery per se or just
4 future medical expenses?
5 MR. DURST: I prefer to stick with
6 the pattern charges whenever possible and I
7 believe the pattern charge covers everything
8 that's requested.
9 MS. COTTER: As to the future as long
10 as it meets the pattern charge, I don't have an
11 objection. However, I, you know, I just need
12 to note my objection to the stipulated amount
13 for the record. I don't see the need for that
14 $18,183 being on the -- being actually said as
15 a stipulation to the jury.
16 MR. DURST: I never stipulated to
17 withdraw any evidence of medical expenses. I
18 only stipulated to the amount of the medical
19 expenses. I typically could put into evidence
20 the evidence of medical expense. I never
21 stipulated that that would not be before the
22 jury.
23 THE COURT: Ms. Scotto?
24 MS. SCOTTO: If it's the pattern jury
25 charge and it's modified for future medical

1133
Proceedings
1 expenses, then it would be okay.
2 THE COURT: Future medical expenses
3 or future medical, surgery and/or expenses?
4 MS. SCOTTO: That's --
5 THE COURT: Because it talks about
6 both.
7 MS. SCOTTO: That's what I meant,
8 your Honor. As long as it didn't concern the
9 past.
10 THE COURT: With regard to the past,
11 there is 1:78 with regard to stipulation of
12 expenses incurred in terms of medical expenses.
13 And which brings me to is that stipulation on
14 the record or in writing before the jury?
15 MR. DURST: It's on the record. Not
16 before the jury.
17 THE COURT: When was it on the
18 record?
19 MR. DURST: Repeatedly. In fact, it
20 was told --
21 THE COURT: That stipulation? That's
22 an item we must address before we conclude
23 then.
24 MR. DURST: So let's do it on the
25 record then if that's an issue.

1134
Proceedings
1 THE COURT: 2:90, I'm sorry, 2:291.
2 MS. COTTER: Yes, this one I have an
3 objection to. It pertains to plaintiff having
4 an unrealized occupation. More specifically
5 plaintiff's counsel states that plaintiff had
6 completed training in automotive mechanics.
7 The testimony is that it was well over ten
8 years ago that the plaintiff completed a short
9 mechanics course in Mexico. There is no
10 testimony that he ever even attempted to get a
11 job in auto mechanics. I don't think it's
12 applicable considering the testimony and the
13 facts of this case. I don't think the
14 plaintiff has ever even alluded to the fact
15 that he wanted to be a mechanic and he could
16 not realize that occupation.
17 MS. SCOTTO: I agree with Ms. Cotter.
18 The testimony -- there is no testimony about
19 him ever trying to get a job as an automotive
20 mechanic or that he ever wanted to pursue that
21 route.
22 MR. DURST: The fact that he had
23 taken a course in it, the accident happened
24 nine years ago. He was barely 19 at the time.
25 The fact that he had received educational

1135
Proceedings
1 training in it certainly indicates that he had
2 aspiration to at least to pursue that subject,
3 that occupation.
4 THE COURT: With regard to this
5 particular charge, I don't see where there was
6 anything in the record with regard to his
7 endeavoring to prepare himself for that
8 position here in the mainland US. To the
9 extent that it appears to be speculative with
10 regard to when he would have obtained requisite
11 skills, proficiency in English to be able to
12 take further courses, since as per the
13 testimony of the vocational rehab expert, that
14 particular training that he received in Mexico
15 was stale.
16 For example, with regard to the
17 computer training that is required currently
18 for any automotive mechanics to work in that
19 particular field, there was no indication from
20 the plaintiff that at the time he took any
21 courses in Mexico that he had taken courses
22 that had a component which included computer
23 skills.
24 So to the extent that that was not
25 put before the jury with respect to the fact

1136
Proceedings
1 that there is nothing but mere speculation with
2 regard to what he may have done in the future,
3 that is not before the jury. And I caution all
4 counsel including defense counsel, to not
5 proffer this possible training in the past as a
6 method for him to gain employment in the
7 future.
8 So if you are asking me to stay away
9 from that and not charge that, that's a
10 double-edged sword, it goes both ways. So
11 don't let me hear you summing up with regard to
12 what he can be expected to do in terms of
13 future employment vis-a-vis the skills that he
14 obtained in Mexico with regard to automotive
15 repair work, because that will be grounds for a
16 curative instruction by the Court sua sponte,
17 because I'm telling everyone that at this
18 point.
19 2:301.
20 MS. COTTER: That one is damages,
21 personal injury collateral sources itemized
22 verdict. I'm objecting to that on the grounds
23 that it should only be for future expenses
24 since we have already stipulated to the past
25 medical expenses.
1137
Proceedings
1 MS. SCOTTO: I agree with that.
2 MR. DURST: What about the other
3 ones?
4 THE COURT: What other ones?
5 MR. DURST: That refers to loss of
6 earnings, impairment of earning ability,
7 rehabilitation services, pain and suffering,
8 that's the itemization that's required in that
9 charge. The amount of medical expenses should
10 be filled in on the line there by the Court and
11 then the rest of it is filled in by the jury so
12 that the jury doesn't speculate as to medical
13 expenses in the past.
14 MS. COTTER: I would --
15 MR. DURST: They know what they are.
16 MS. COTTER: I would object to
17 custodial care as there is no testimony or
18 evidence that your client is in need of any
19 custodial care.
20 MR. DURST: I said delete dental
21 expenses and custodial care in my request to
22 charge.
23 MS. COTTER: Rehabilitation services
24 he has testified that he is not engaging in
25 rehabilitation and he testified that he doesn't

1138
Proceedings
1 intend to.
2 MR. DURST: No, that's not true. The
3 doctor who testified said that he would need
4 extensive period of rehabilitation after such
5 an operation in the future. I'm talking about
6 future rehabilitation services.
7 MS. SCOTTO: I don't recall the
8 doctor testifying about that.
9 MR. DURST: I do.
10 THE COURT: So other than the
11 deletions as indicated thus far, dental,
12 custodial care, past medical expenses, since
13 that is the stipulation by the parties with
14 regard to what that past medical expense was,
15 other than those deletions, any objection to
16 this charge?
17 MS. COTTER: To the extent it
18 requests a separate item for rehabilitation
19 services, I would object.
20 THE COURT: Okay. Anything else?
21 MS. SCOTTO: I have the same
22 objection. I don't recall the doctor saying
23 that.
24 THE COURT: Okay. So that charge,
25 the Court will give that charge with the

1139
Proceedings
1 deletions which indicate dental expenses and
2 custodial care. The balance of those items
3 will be for the jury to consider to the extent
4 that there is evidence from which they can --
5 if there is evidence from which they can make
6 those assessments, and I believe there is
7 sufficient evidence there for the jurors to
8 make assessments in those particular
9 categories, that would go to the jury.
10 MS. SCOTTO: Judge, will it be
11 limited to future medical expenses?
13 MS. SCOTTO: Will it be limited to
14 future medical expenses?
15 THE COURT: We have the past medical
16 expenses up to the date of the verdict that's
17 the stipulated amount. That amount will
18 already go into the verdict sheet since that's
19 the amount that has been stipulated and agreed
20 as soon as we are done here by the parties. So
21 that's already in there and they will
22 understand why it's in there.
23 And then the deletions with regard to
24 those other items that we have just reviewed.
25 I think that takes care of everything else

1140
Proceedings
1 that's contained in this charge.
2 MR. DURST: Yes, Judge.
3 MS. SCOTTO: No, your Honor. I have
4 one objection.
5 THE COURT: With regard to what?
6 MS. SCOTTO: 1:75.
7 THE COURT: No, I'm talking about
8 2:301. We are done with that charge, right?
9 MS. SCOTTO: Yes.
10 THE COURT: I'm sorry. Which, 1:75?
11 MS. SCOTTO: Yes. Missing witness
12 charge concerning Ed Scoppa. May I be heard,
13 your Honor?
14 THE COURT: Sure.
15 MS. SCOTTO: The plaintiff has no
16 direct claim against Ferrara and cannot ask for
17 a charge against Ferrara's witness. The
18 third-party defendant has no burden of proof to
19 call any witnesses whatsoever.
20 As we heard the testimony of Ernie
21 Freymuller, the investigator called by
22 Ms. Cotter, they were not able to serve
23 Mr. Scoppa with a valid subpoena because he
24 lives and works in the State of New Jersey.
25 And then my paralegal, Mark Hinds, testified

1141
Proceedings
1 that he spoke with Ed Scoppa who said that he
2 worked in New Jersey and he lived in New
3 Jersey. He wasn't willing to come in
4 voluntarily.
5 MR. DURST: I will shortcut this.
6 Your Honor, since it's a gray area I'm going to
7 withdraw that request.
8 THE COURT: Now we turn to the
9 defendants' request to charge.
10 I forgot to include in my general
11 charge the expert jurors, so after the charge
12 on translator I will do 1:90 which is the
13 expert witnesses.
14 MR. DURST: Your Honor, I don't
15 remember you mentioning in 1:23 which I know
16 burden of proof.
17 THE COURT: I did mention that. It
18 must have been when you had your head in your
19 briefcase.
20 MR. DURST: Okay. Euphemistically
21 put.
22 THE COURT: Literally and
23 figuratively.
24 Ms. Cotter, your first request that
25 is not part of the other requests to charge

1142
Proceedings
1 that I have reviewed thus far is 1:70,
2 circumstantial evidence?
3 MS. COTTER: Uh-huh.
4 THE COURT: Circumstantial evidence
5 as it relates to what precisely?
6 MS. COTTER: Well, it's interesting
7 because in number 15, about five pages into my
8 charge I also put down the specific
9 circumstantial evidence charge for this type of
10 case, for a products case.
11 THE COURT: So it's one or the other,
12 correct?
13 MS. COTTER: Right. So I would defer
14 to the Court's discretion which, you know,
15 which of those to use. I put them both in, you
16 know, to cover all --
17 MR. DURST: 2141.1 doesn't apply.
18 THE COURT: Mr. Durst, let's do this
19 the same way we did with your requests to
20 charge. First I'm going to ask Ms. Cotter what
21 her requests are and why, then I will ask for
22 objections, all right. Then you can tell me
23 why you object.
24 2:141.1. Let's then take them in
25 order. Let's go to -- I will hold off on 1:70

1143
Proceedings
1 because we will take that up at 2:141.1. 1:77,
2 do we have that on Mr. Durst's case? Failure
3 to produce documents, right? What documents
4 are you referring to?
5 MS. COTTER: Any documentation that
6 links National Equipment to this machine and,
7 you know, shows that National Equipment either
8 received it from Europe and passed it on in the
9 United States and more specifically, passed it
10 on in the United States to third-party
11 defendant Ferrara Foods. Despite numerous
12 demands throughout the case we have never
13 received one piece of paper.
14 MR. DURST: Your Honor, this
15 charge --
16 THE COURT: One second.
17 Go ahead, Mr. Durst.
18 MR. DURST: This charge has zero to
19 do with failure to produce documents you would
20 be reasonably expected to have in their
21 possession and then failure to produce them.
22 We, of course, rely on the defendant to produce
23 those documents to us. And so we never had
24 control of those. Those are documents
25 generated and in the possession of the

1144
Proceedings
1 defendant, not plaintiff.
2 THE COURT: I take it --
3 MS. SCOTTO: I have no position, your
4 Honor.
5 MS. COTTER: Well, the charge reads
6 "That an inference cannot be made by the jury
7 unless first they determine that there are
8 documents in plaintiff's possession or which he
9 could get --"
10 THE COURT: Let me stop you.
11 MS. COTTER: "-- from his former
12 employer."
13 THE COURT: Let me stop you right
14 there.
15 How is the plaintiff, Mr. Cirro
16 Rodriguez, expected to have in his possession
17 documents which relate back to a machine that
18 was manufactured in the '50s, probably before
19 his mother was born, and documents which refer
20 to a distributor in the US? How is he supposed
21 to have those documents in his possession?
22 MS. COTTER: I would think to the
23 extent he could go to Ferrara Foods and get
24 anything.
25 THE COURT: A third-party defendant

1145
Proceedings
1 will gladly turn over documents to someone who
2 is suing it, is that what you are saying?
3 MS. COTTER: Perhaps.
4 THE COURT: Perhaps. Well, to the
5 extent that --
6 MS. COTTER: Well, the plaintiff
7 isn't suing the third-party defendant.
8 THE COURT: To the extent that your
9 manufacturer -- I'm sorry, your distributor,
10 the defendant NEC, did not turn over certain
11 materials either, you think that the
12 third-party defendant would gladly turn over
13 materials to the plaintiff?
14 Okay, that's denied.
15 2:72.
16 MS. COTTER: Does anyone have any
17 objection to that?
18 MS. SCOTTO: I thought that was in
19 the plaintiff's.
20 MR. DURST: That is mine. Concurrent
21 causes and intervening causes, they balance
22 each other.
23 THE COURT: 2:72 is one of your
24 requests? I must have missed that one. Okay,
25 so you are in agreement on that one, right?

1146
Proceedings
1 MR. DURST: And we are also in
2 agreement on 2:71, concurrent causes.
4 second.
5 All right, Ms. Cotter, you are in
6 concurrence with 2:71 as well?
7 MS. COTTER: Yes.
8 THE COURT: Ms. Scotto, you agree
9 with these two as well, 2:71 and 2:72?
10 MS. SCOTTO: Yes.
11 THE COURT: Let's take 2:36,
12 comparative negligence. Let's make this quick.
13 Mr. Durst, do you agree that there is
14 evidence out there for the jurors to consider
15 this charge with regard to the happening of
16 this accident?
18 THE COURT: I'm going to have to ask
19 everyone to excuse me because I do have an
20 infant compromise that was here this morning
21 while I was doing my hearing, and did not get a
22 chance to do because I had you in here after my
23 hearing. And I made sure that they understood
24 that they had to come back this afternoon.
25 So excuse me. This will only take a

1147
Proceedings
1 few moments. So we are all in agreement that
2 2:36 should be charged, that there is evidence
3 before the jury to consider that, correct?
4 MR. DURST: Yes.
5 MS. COTTER: Yes.
7 THE COURT: You can leave everything
8 here. You will be right back.
10 THE COURT: I think we are on
11 2:141.2.
12 MS. COTTER: Before we go on, could I
13 withdraw both my requests, the more I looked at
14 them, for circumstantial evidence, the 1:70 and
15 also 2:141.1?
16 THE COURT: Yes, because I don't
17 think the product was destroyed, lost or
18 discarded, correct?
20 THE COURT: So that's 2:141.
21 MS. COTTER: Point one,
22 circumstantial evidence. I will withdraw that
23 one. And then I can also withdraw my request
24 for the standard circumstantial evidence 1:70.
25 MR. DURST: But I think I want that

1148
Proceedings
1 one.
2 THE COURT: Did you give me that as a
3 request to charge, Mr. Durst?
5 THE COURT: Did you originally give
6 that to me?
7 MR. DURST: Yes, your Honor. It's
8 right here.
9 THE COURT: We never discussed that
10 one on your go round.
11 MR. DURST: Well -- and I must say we
12 only discussed the ones they objected to.
13 There were some that we did not discuss which
14 they didn't object to.
15 THE COURT: Let's finish with
16 Ms. Cotter and then Ms. Scotto.
17 So you are withdrawing that one
18 1:141.1 was also withdrawn?
19 MS. COTTER: The circumstantial
20 evidence.
21 THE COURT: Correct. And then
22 2:141.2 you are also requesting this one --
23 MS. COTTER: Yes.
24 THE COURT: -- Mr. Durst had
25 requested, and then you are requesting --

1149
Proceedings
1 MS. COTTER: Yes, with respect to the
2 strict liability 2:141.1 and the supplemental
3 strict liability when it left the hands of the
4 defendant, 2:141.2, I will just ask that it be
5 drafted as proposed in my requests.
6 MR. DURST: I will object.
7 THE COURT: Just one second. 2:141
8 is the strict liability charge. So all of you
9 requested 2:141 except that each one of you
10 requested that the Court modify the charge and
11 utilize your respective proffered modifications
12 of that charge; is that correct?
13 MR. DURST: Yes.
14 MS. COTTER: Yes.
15 MS. SCOTTO: Yes.
16 THE COURT: I will reserve decision
17 with regard to how I will modify that, if at
18 all.
19 MS. COTTER: And I also just noted
20 with the 2:141.2 that would be the place where
21 the substantial modification, according to the
22 annotation, would be addressed. Because there
23 is not a specific charge as to substantial
24 modification. And that I added language in my
25 request.
1150
Proceedings
1 MR. DURST: And I would object to
2 that and request standard language be used for
3 2:141.2. And that --
4 THE COURT: Let me hear Ms. Cotter
5 with regard to substantial modification, that
6 aspect of it.
7 MS. COTTER: Well, here with respect
8 to substantial modification, as the Court is
9 well aware according to Robinson versus Reade
10 and the cases which adhere to it, if it is
11 found that once the product left the
12 manufacturer/distributor's hand that it was
13 substantially altered by removal of a key
14 safety feature, then as a matter of law, a case
15 cannot be made out against a distributor such
16 as my client.
17 And, you know, once motions are made
18 at the end of plaintiff's case, this will be
19 discussed in further detail, but with respect
20 to the charge, the jury should also be
21 instructed on substantial modification and
22 specifically whether or not they find whether
23 or not the product was substantially modified
24 after it left National Equipment's hand, if
25 they find that National Equipment ever had

1151
Proceedings
1 possession of the product.
2 And if they find that it was
3 substantially modified by Ferrara Foods after
4 it left the possession of National Equipment,
5 they should be instructed to stop right there
6 if that substantial modification was a
7 proximate cause or substantial factor with
8 respect to the cause of the accident.
9 THE COURT: Mr. Scotto?
10 MS. SCOTTO: I had my own version of
11 that charge that I had requested, but I agree
12 that there has to be a charge with respect to
13 substantial modification of the machine.
15 MR. DURST: Your Honor, the claimed
16 defect here of a failure to have an interlocked
17 gate over the hopper, there is absolutely no
18 evidence that there was ever any removal of an
19 interlocked gate or guard over the hopper. In
20 fact, there is testimony that there was never
21 an interlocked gate or cover over the hopper.
22 Mrs. Tonnaer testified to that. Everyone else
23 testified that this machine never had an
24 interlocked guard.
25 Now, therefore, there is no evidence

1152
Proceedings
1 of a modification that destroyed a safety
2 feature that was present on the machine. There
3 is no evidence that the interlock guard was
4 ever present; that other changes may have
5 occurred having nothing to do with that
6 interlocked guard is not evidence of the
7 substantial modification of the safety feature
8 at issue here.
9 And Robinson versus Reade Prentis
10 specifically dealt with a guard which was
11 removed -- a safe machine when sold that later
12 became unsafe because someone had removed the
13 safety feature. That did not occur in this
14 case, it was absolutely no evidence of anything
15 of that nature, number one.
16 Number two, any argument on that
17 subject would go to whether it was safe when it
18 left the manufacturer's or the seller's hands.
19 That is something that is argument and you --
20 the defendants are free to argue that when it
21 left the hands it was safe. But the jury is
22 not instructed as to -- the jury has already
23 been instructed that if it was safe when it
24 left their hands, it's not defective and that
25 is the key instruction. Not elaborating on

1153
Proceedings
1 their argument.
2 MS. COTTER: I would strongly
3 disagree. I think if there is any case where
4 there has clearly been substantial alterations
5 on the product in the hands of the third-party
6 defendant, it's this case.
7 First of all, it's for the jury to
8 decide based on all the testimony they have
9 heard, what was changed whether a safety
10 feature or not, but I think in this particular
11 case it's been testified to by several
12 witnesses including your own client that the
13 safety grate, safety switches, a microswitch, a
14 lever, and perhaps other features of this
15 machine were actually removed by Ferrara Foods
16 once they got possession of this machine.
17 Whether.
18 it is an interlock gate or something
19 else, is for the jury's consideration. And,
20 you know, if the jury wasn't instructed on a
21 substantial alteration, I mean it would be
22 clearly an error and they would be misled, you
23 know, in this type of products case which is a
24 substantial alteration case.
25 MS. SCOTTO: Your Honor, if I just

1154
Proceedings
1 may add, the testimony of Margo Tonnaer as well
2 as the two liability experts was that the grate
3 itself was a safety feature and its presence
4 would have avoided the accident so I think that
5 is a key safety feature that was removed.
6 THE COURT: Okay. And I think that's
7 it for your requests to charge.
8 MS. COTTER: That appears to be it.
9 THE COURT: With regard to 2:141 and
10 2:141.2, I will review the relevant charges and
11 review your respective requests with regard to
12 modifying the charge as is and I will make my
13 decision with regard to what, if any,
14 modifications to the standard charge I will be
15 making, okay.
16 So now we are up to Ms. Scotto's your
17 requests to charge. All right, what have you
18 in your requests that we have not touched upon
19 before?
20 MS. SCOTTO: Your Honor, the first
21 one is 1:103 which has to do with the note
22 taking by jurors. I noticed that juror number
23 six takes notes and I have on occasion seen, I
24 believe it's juror number two that takes notes
25 as well. And I would just ask that that be

1155
Proceedings
1 addressed.
2 THE COURT: Okay. Everyone is in
3 agreement with that, correct?
4 MS. COTTER: Yes.
5 MR. DURST: No objection one way or
6 the other.
7 THE COURT: You had 1:25A, jurors use
8 your professional expertise. Whom on the jury
9 has professional expertise?
10 MS. SCOTTO: If you would give me one
11 second let me see why I picked that.
12 THE COURT: Are there any nurses, any
13 engineers?
14 MS. SCOTTO: No, Judge, I think when
15 I picked it I was thinking of juror number one
16 who worked with machines.
17 THE COURT: The foreperson?
18 MS. SCOTTO: Yes.
19 MS. COTTER: The body man.
20 MS. SCOTTO: He works in a body shop
21 and he said he worked on machines. And
22 although it's not the same type of machine, it
23 was similar enough, I thought, to give them the
24 charge.
25 THE COURT: That is the juror

1156
Proceedings
1 questionnaire which I do not have in front of
2 me right now. Does anyone have that particular
3 juror questionnaire?
4 MS. SCOTTO: No, Judge.
5 MS. COTTER: No, I don't believe I
6 have.
7 MR. DURST: I don't have it.
8 MS. COTTER: That was all that it
9 said, it said he was a body man. That's the
10 words he used. That's literally his title.
11 MS. SCOTTO: Body man and we had to
12 ask him what that meant.
13 THE COURT: Just to err on the side
14 of caution that he might work with machines.
15 And I think all parties would agree that he is
16 not to utilize any of the expertise that he may
17 have or rather share the expertise that he may
18 have vis-a-vis the workings of various
19 machines. I will, to err on side of caution,
20 give that charge. So that's 1:25A.
21 What else?
22 MS. SCOTTO: I have 1:37 the jury
23 function that's something very basic.
24 THE COURT: I do that already. So
25 none of the boilerplate charges, I think I have

1157
Proceedings
1 addressed them all. So what else have we not
2 covered that you have in your request?
3 MS. SCOTTO: Judge, I actually, I
4 think I heard you say before you were going to
5 give the expert witness charge, but I didn't
6 check it off. I think that's 1:90.
7 THE COURT: I have that already.
8 MS. SCOTTO: Sorry, Judge.
9 THE COURT: I think that basically
10 there is nothing that else that you have that
11 we haven't already discussed.
12 MS. SCOTTO: Actually there is, your
13 Honor. I had asked for 2:55 which plaintiff's
14 counsel asked for as well, the implied
15 assumption of the risk. I would also like to
16 add 2:55A. This has to do with express
17 assumption of the risk a preoccurrence warning.
20 THE COURT: So you're both in
21 agreement with regard to 2:55; is that right?
22 MS. SCOTTO: Yes.
23 MR. DURST: I'm sorry, yes, your
24 Honor.
25 MS. COTTER: Yes.

1158
Proceedings
1 THE COURT: Okay. With regard to
2 2:55A express assumptions of risk.
3 MS. SCOTTO: Your Honor, it would
4 have to be modified somewhat because the
5 plaintiff doesn't deny that the defendant told
6 him not to stick his hand into the mixing bowl
7 of the machine. In fact, the plaintiff
8 testified on cross-examination that he was
9 trained by a co-worker by the name of Roman not
10 to put his hand inside the machine. And Miguel
11 Rogel testified too that he explicitly
12 instructed the plaintiff on how to use the
13 machine and not to put his hand inside of it.
14 THE COURT: Okay. Mr. Durst?
15 MR. DURST: Your Honor, I think there
16 is this -- whether he puts his hands inside of
17 it, I think the evidence was that he was -- he
18 indicated that he was shown how to remove the
19 dough and that, of course, required putting
20 your hands in the bowl. And that there is --
21 he was also -- Rogel states that he was told to
22 clean the machine. And so I don't see express
23 assumption of risk issue here. Preoccurrence
24 warning, I don't see that -- this relates to a
25 much more specific issue.

1159
Proceedings
1 MS. SCOTTO: His training was to
2 never put his hand inside the mixing bowl when
3 the blades were on and that's what he said
4 during cross-examination.
5 THE COURT: To the extent there is
6 evidence for the jurors to consider whether
7 that fact occurred or did not occur, whether he
8 was, in fact, warned or was not warned, there
9 is sufficient evidence for the jurors to
10 consider that, so I will charge that.
11 What else do you have, Mrs. Scotto?
12 MS. SCOTTO: The only other charge
13 that I have that no one else has is on the last
14 page.
17 THE COURT: 2:55A was not actually on
18 your request; is that correct?
19 MS. SCOTTO: It was not, Judge. I
20 requested to add it today.
22 MS. SCOTTO: The only other one that
23 no one has mentioned so far was on the last
24 page of my requests to charge about an open and
25 obvious condition. And I would request --

1160
Proceedings
1 THE COURT: What charge is that?
2 MS. SCOTTO: I wrote it myself. It's
3 on the last page.
4 THE COURT: Is there a PJI charge?
5 MS. SCOTTO: No, there is not. It
6 comes right out of the cases which I listed
7 there. And I would request that the jury be
8 charged that the defendant and the third-party
9 defendant had no duty to warn again a condition
10 that was open and obvious and it was readily
11 observable to him.
12 MS. COTTER: I would concur in this.
13 MR. DURST: I would suggest that
14 that's an argument, not a charge; that that's
15 subsumed within the duty to warn charge. It's
16 one of the factors that we have been taking
17 into consideration.
18 THE COURT: Ms. Scotto, since there
19 is no relevant PJI charge that is denominated
20 as an open and obvious condition as it relates
21 to this particular case, I'm not inclined to
22 give that charge.
23 Okay, I think that's it, right, with
24 regard to the charge conference.
25 MS. COTTER: Your Honor, I just had

1161
Proceedings
1 one question because my notes were not clear.
2 With regard to plaintiff's request for a
3 missing document charge against my client, 1:7,
4 did you reserve decision on that or did you
5 deny it?
6 THE COURT: That one I reserved
7 decision.
8 MS. COTTER: Did you need to see any
9 documentation or --
10 THE COURT: Well, I didn't hear you
11 with regard to that. Let me just look at this
12 again.
13 I have to reserve with regard to the
14 plaintiff's request and I need to refresh my
15 recollection with regard to the testimony given
16 vis-a-vis the cards, because I do believe I did
17 hear Mr. Greenberg discuss new machines. So
18 let me just review that first before I rule on
19 that particular charge for the plaintiff's
20 benefit.
21 MS. COTTER: Okay, I would just point
22 out that he is stating that throughout the
23 litigation back in 1998 he requested documents
24 regarding new dough mixers. From Tonnaer and
25 old dough mixers from Tonnaer. We responded to

1162
Proceedings
1 that request. We just did not have documents
2 regarding new dough mixers we gave him what we
3 had regarding refurbished or used ones.
4 MR. DURST: He testified he never
5 looked for new documents because he didn't feel
6 they were relevant.
7 MS. COTTER: Prior to coming to
8 testify at trial or back in 19981 a demand was
9 made? He was talking about coming to trial.
10 THE COURT: That was my memory with
11 regard to his trial testimony which is why I
12 need to review it. Because I do recall him
13 saying that he did not bother to look for that.
14 MS. COTTER: Before coming to the
15 trial.
16 THE COURT: Before coming in to
17 testify, yes. Not with regard to discovery,
18 but for the purpose of trial.
20 THE COURT: And you will recall that
21 instead of bringing the originals he chose to
22 bring in copies, for whatever reason he just
23 unilaterally brought in copies as opposed to
24 originals.
25 MS. SCOTTO: If I could just add to

1163
Proceedings
1 that if it was exchanged with the discovery
2 response which defense counsel has to bring
3 tomorrow, plaintiff's counsel could have
4 cross-examined him on it and failing to take
5 that opportunity, the defendant shouldn't be
6 punished at this point.
7 THE COURT: Defendant -- I thought
8 this was nothing to do with the third-party
9 defendant.
10 MS. SCOTTO: Well, as a third-party
11 defendant, I step into the shoes of a defendant
12 so if there is an argument to be made I need to
13 support it.
14 MS. COTTER: The point is plaintiff's
15 request pertains to a February 1998 demand
16 which was responded to.
17 THE COURT: Right. And?
18 MS. COTTER: And that was responded
19 to. And he --
20 MR. DURST: It was responded to
21 without producing --
22 MS. COTTER: That he had no
23 documents. You asked him with respect to
24 coming to the trial now in 2003 did he bring
25 with him invoices regarding new dough mixers

1164
Proceedings
1 and he said no, he did not.
2 MR. DURST: I find it fascinating
3 that he stated he never looked, that to me is
4 just amazing.
5 MS. COTTER: Prior to coming to
6 trial.
7 THE COURT: I think we are done with
8 regard to the request to charge, correct?
10 THE COURT: With regard to that
11 stipulation which all of you seem to agree that
12 you have discussed vis-a-vis the past medical
13 bills in the amount of 18,000 and change, that
14 has not been placed on the record or in
15 writing.
16 MS. SCOTTO: No, it has not.
17 MR. DURST: It's stipulated that the
18 medical bills in the past --
19 THE COURT: You have to speak up much
20 louder, Mr. Durst.
21 MR. DURST: It is stipulated that the
22 medical bills in the past amount to the dollar
23 figure of $18,183.
25 MS. COTTER: So stipulated.

1165
Proceedings
1 THE COURT: 18,000?
2 MR. DURST: $183.
3 THE COURT: Now, while we are on the
4 subject of medical bills, the medical records,
5 were those placed into evidence?
7 THE COURT: All right. I don't have
8 my recollection. I haven't looked at my trial
9 book, but the medical bills that you are
10 referring to, $18,183, are contained within the
11 medical records.
12 MR. DURST: No, the bill is not in
13 there, that's why we stipulated so that I
14 wouldn't have to go to the trouble of bringing
15 the -- it's all in the Workers Comp records
16 which are also subpoenaed into court.
17 THE COURT: Are those Workers Comp
18 records available?
19 MR. DURST: They are available but
20 they are not in evidence.
21 THE COURT: But the bills are
22 contained within that batch of evidence?
23 MR. DURST: Yes, your Honor. And
24 there is a letter from the Workers Comp
25 adjustor indicating that is the exact amount of

1166
Proceedings
1 the medical bills that were paid and the lien
2 amount.
3 THE COURT: I think that's it. Now
4 it's on the record with regard to the past
5 medical bills, correct?
6 MS. SCOTTO: Yes.
7 MR. DURST: Yes.
8 THE COURT: Tomorrow morning before
9 we begin, we need to once again gather together
10 all of the evidence to make sure that we have
11 dotted our I's and crossed our T's with regard
12 to the markings on the various pieces of
13 evidence, because we still haven't done that
14 with regard at least to the index cards which
15 were previously marked for identification now
16 by stipulation. That's another stipulation,
17 right?
19 THE COURT: Why don't we place that,
20 I think we have already placed that on the
21 record, but just to be on the safe side with
22 regard to the index cards which were proffered
23 by the defendant originally as, I believe, G
24 for identification.
25 MS. COTTER: Yes.

1167
Proceedings
1 THE COURT: These were Xerox copies
2 of six index cards that were brought in by
3 Mr. Greenberg.
4 MS. COTTER: Yes. It is now
5 stipulated by all counsel that these index
6 cards were which were marked as Defendant's G
7 will be moved into evidence as Defendant's G.
8 MR. DURST: To stipulated.
10 MR. DURST: Objection withdrawn.
11 THE COURT: They will be moved into
12 evidence not withstanding the fact that they
13 are copies and not originals.
15 MS. SCOTTO: Yes.
16 MS. COTTER: Yes.
19 THE COURT: Let's take up the request
20 with regard to the mistrial.
21 MS. SCOTTO: Your Honor, I have a
22 request for a mistrial because both Ms. Cotter
23 and Mr. Durst have repeatedly stated in front
24 of the jury that there was an OSHA inspection,
25 that Ferrara was cited and fined with regard to

1168
Proceedings
1 this accident and the Court previously ruled
2 that this was inadmissible and in spite of the
3 ruling, both attorneys during the questioning
4 of liability experts asked questions about the
5 OSHA inspection and fines. And I did make
6 objections. They were sustained at the time.
7 But the jury heard it and I think I it's very
8 inflammatory, it's highly prejudicial and I'm
9 requesting a mistrial.
11 MR. DURST: The reference to OSHA was
12 in conjunction with the standard with regard to
13 the basis of expert opinion. And the basis of
14 the expert opinion was that the product did not
15 comply with various regulations, one of which
16 included OSHA regulations.
17 I believe he is entitled to indicate
18 that his understanding is that this product did
19 not comply with the OSHA regulations and I
20 think that's a proper basis for an expert's
21 opinion.
23 MS. COTTER: And I would agree with
24 Mr. Durst on that issue. OSHA applies to
25 employers, the third-party defendant being the

1169
Proceedings
1 plaintiff's employer, and as was set forth in
2 my 3101(d) disclosure as to my expert, he was
3 going to discuss OSHA violations by the
4 employer, including removal of the safety grate
5 and the fact that OSHA requires that all
6 equipment has to be disconnected while it's in
7 disrepair and it's waiting for service.
8 So as to me, the third-party
9 defendant -- I'm sorry the third-party
10 plaintiff with the direct action against
11 third-party defendant, I don't see why my
12 expert and my questioning of witnesses cannot
13 talk about OSHA.
14 MS. SCOTTO: Your Honor, I don't
15 think we are on the same page on this. I'm not
16 saying that an expert couldn't talk about OSHA
17 as a statute or as a guideline. What I'm
18 saying is Ms. Cotter and Mr. Durst stood in
19 front of the jury and said, are you aware that
20 a few days after this accident, okay, OSHA came
21 down and cited Ferrara for this very accident
22 for this very machine. And that's what the
23 Court ruled that they were not permitted to do
24 and they did it anyway.
25 THE COURT: To the extent that I did

1170
Proceedings
1 sustain the objection, we are not prepared to
2 do -- obviously, I know none of you want a
3 mistrial notwithstanding the fact that you have
4 to zealously represent your clients and ask for
5 a mistrial. I wonder what we would all do if I
6 actually granted that request, so -- tongue in
7 cheek of course -- what I will do instead is
8 give the jury a curative instruction. With
9 regard to mention of an OSHA violation, I will
10 instruct them that they are not to consider
11 this in their deliberations, especially since
12 there is no evidence before them for which they
13 may consider this.
14 So I will direct them to disregard
15 anything that they may have heard, all right,
16 and I will strike that from the testimony. All
17 right?
18 That's an ameliorative measure. The
19 last remaining items?
20 MS. SCOTTO: Your Honor, plaintiff's
21 counsel was instructed by the Court on Monday,
22 May 17, to fax sections that his engineer was
23 going to be relying upon to defense counsel by
24 Tuesday, May 18. And then last Thursday --
25 actually Thursday May 18, I'm sorry, Thursday

1171
Proceedings
1 of that week, at the end of the day Mr. Durst's
2 firm faxed over six pages which included the
3 Handbook for Industrial Safety Standards 1929
4 Edition, the Model Code for Industrial
5 Establishments for the Guidance of Governments
6 and Industry 1949 Edition, of which he
7 testified about.
8 But then Dr. Paul, the plaintiff's
9 expert, testified about the American Society of
10 Standards 1947 Edition, the Standard of Safety
11 for Bakery Machinery, the American Standard
12 Safety Code for Bakery Equipment, National
13 Standard Institute of 1947, which was reviewed
14 in 1971, 1973, 1977, 1983, 1988, 1994, and
15 2000, and he also mentioned ANSI, of which no
16 sections were supplied to my office. And --
17 MS. COTTER: Or my office.
18 MS. SCOTTO: -- I ask that the
19 testimony concerning those standards be
20 stricken from the record.
21 THE COURT: Who is next?
22 MR. DURST: Your Honor, with
23 regard --
25 MS. COTTER: I would concur in the

1172
Proceedings
1 argument just set forth by Ms. Scotto to the
2 extent that we were only faxed and given --
3 made aware of two codes, the 1929 and 1949,
4 although plaintiff's expert went, you know,
5 into, on direct, several other codes which were
6 just set forth by Ms. Scotto. And the
7 testimony as to those codes at a minimum should
8 be stricken.
9 MR. DURST: With regard to the codes
10 that she mentioned, none of them exist. The
11 only code that he mention was the American
12 National Standard Institute, which is the same
13 as ANSI. So she's confused as to what
14 standards he mentioned. He didn't talk about
15 the specifics of ANSI, but to the extent that
16 he did mention that they supported his opinion,
17 those same standards were testified to by their
18 own expert.
19 MS. SCOTTO: I don't have an expert.
20 MR. DURST: No, but that wasn't
21 offered against you anyway, it was offered
22 against the defendant, not to testify with
23 regard to you, with regard to the design of the
24 machine.
25 In addition, the 1949 Bakery Safety

1173
Proceedings
1 Code, which was the only other one besides the
2 ANSI codes that was referred to, was one that
3 was produced in addition by your own expert.
4 Both of those standards have been relied upon
5 by your own expert in his testimony and were
6 discussed at some length during his testimony.
7 And with regard to that 1947 American Society
8 of Bakery Engineers Standards, which was
9 admitted into evidence for the purpose of
10 impeaching the credibility of this witness --
11 MS. COTTER: Well, I don't know if
12 you are going on to a different issue now.
13 MS. SCOTTO: Yes.
14 THE COURT: To the extent that I have
15 reviewed the disclosure by Ms. Cotter to both
16 the plaintiff and I assume the third-party
17 defendant, to the extent that that disclosure
18 is on par with the disclosure proffered by
19 Mr. Durst, I would say that you are both on
20 equal footing.
21 So I'm not going to strike anything
22 at this point since both of you -- and
23 Ms. Cotter, I was quite surprised because you
24 informed me that your 3101(d) was very
25 specific. When, in fact, after I reviewed it,

1174
Proceedings
1 it was as specific and as detailed with regard
2 to relevant areas in which the expert would be
3 commenting upon vis-a-vis particular statutes
4 or section or whatever, it was as dispositive
5 as Mr. Durst's disclosure.
6 So I am not going to strike anything.
7 The jury will consider all of this testimony as
8 they heard it. These are standards in the
9 industry which apparently Mr. Visser was
10 testifying to in the same manner as Mr. Paul
11 was testifying to. So I'm not going to strike
12 any of that testimony whatsoever.
13 MS. COTTER: Just for the record, in
14 my expert disclosure he doesn't -- or no
15 particular sections 1929, 1947 or any standards
16 are actually mentioned in the disclosure. On
17 my direct of my expert I did not even talk
18 about the American Standard Safety Code for
19 Bakery Equipment.
20 I would note that on
21 cross-examination Mr. Durst did ask my expert
22 about ANSI and the American Safety Code for
23 Bakery Equipment. He did not testify
24 specifically as to sections of ANSI. He did
25 respond to questions asked by Mr. Durst about

1175
Proceedings
1 the American Standard Safety Code for Bakery
2 Equipment.
3 My particular objection is this code
4 is actually in evidence. When Mr. Durst tried
5 to get other codes into evidence and they
6 weren't allowed into evidence, I just --
7 it's -- it doesn't really make sense why this
8 is in evidence.
9 THE COURT: It's in evidence for
10 impeachment purposes for which the jury can
11 review with regard to the testimony proffered
12 by your expert.
13 MS. COTTER: On cross-examination?
14 THE COURT: Yes. So we are not
15 belaboring this point. That's my ruling.
16 That's -- it's in there for impeachment
17 purposes. We have already covered the areas
18 that are in for the purposes of impeaching.
19 All right?
20 MS. COTTER: Well, will the Court
21 redact those areas that weren't cross-examined?
22 THE COURT: Whatever is not relevant
23 for the jury's consideration with regard to
24 impeachment will be redacted as will everything
25 else that has not been published to the jury.

1176
Proceedings
1 So redactions will be made extensively tomorrow
2 once you are done with your summations. If we
3 can swing it and do it in between summations
4 and charge, that would be fine.
5 MR. DURST: A very major issue that
6 we all are concerned with is whether 6.1.9 of
7 the Society of Bakery Engineer Standards of
8 1947 is in. And I suggest that the witness
9 testified that this machine complied with the
10 standard. Then when asked on the recross, the
11 last question I asked, I said that code
12 requires that the bowl be completely enclosed
13 at all times when mixing, and that if the cover
14 is open the blades automatically stop and he
15 testified yes. In other words, he completely
16 destroyed his credibility on the entire
17 testimony of compliance with standards. And
18 that 6.1.9 is therefore absolutely essential to
19 the valuation of the credibility of this
20 expert.
21 MS. COTTER: Well, that's your
22 argument, but what I would just want to make
23 clear without belaboring the point is on cross
24 I have -- and I have them tabbed in the actual
25 cross-examination of the liability expert,

1177
Proceedings
1 which sections of the Bakery Standard he did
2 talk about and I just have 6.1.1, 6.1.2 and
3 6.1.5.
4 THE COURT: Tomorrow, Mr. Durst, you
5 will find the relevant portion that you are
6 referring to and you will look at the item that
7 has been submitted in evidence for the purposes
8 of impeachment and you will flag that.
9 We are done, everyone.
10 MS. SCOTTO: Judge, if I could just
11 note I concurred in the objection. I tried to
12 say it before, but I join in the objection.
13 THE COURT: All right, we are done.
15 case adjourned to Thursday, June 3, 2004 at
16 9:30 a.m.)
17
18
19
20
21
22
23
24
25
1178

2 ----------------------------------------X
CIRRO RODRIGUEZ,
3
Plaintiff,
4 Index No.
-against-
5 16482/95
7 Defendant.
----------------------------------------X
Index No.
10 -against- 16482/95
----------------------------------------X
13
851 Grand Concourse
June 3, 2004
15
B E F O R E:
16
18
19
20 -------------------------------------------------
24 counsel and out of the hearing of the jury)

1179
Proceedings
1 outside the jurors' presence. There are a few
2 final details that need to be placed on the
3 record before we proceed to summations.
4 Off the record.
6 THE COURT: Before we proceed with
7 summations, there were some issues with regard
8 to the charge conference that I had reserved
9 decision on yesterday, I believe. And my
10 decision is as follows:
11 With regard to the request for 2:15
12 and 2:16 made by plaintiff, that is denied.
13 And with regard to plaintiff's
14 request for 1:75 --
15 MR. DURST: That was withdrawn, your
16 Honor.
17 THE COURT: All right. In that case
18 that's withdrawn. That's a good thing because
19 I was going to deny that request.
20 With regard to 2:55, 2:55A, I believe
21 there was an agreement to withdraw that by the
22 plaintiff and the third-party defendant,
23 correct?
24 MR. DURST: Yes. 2:55A I never
25 requested.
1180
Proceedings
1 MS. SCOTTO: That was my request,
2 your Honor, and you said that was in.
4 2:55 and 2:55A, I did initially indicate
5 yesterday that I would allow it. But after
6 reviewing it again, I am going to deny that
7 request. And it doesn't apply to -- there is
8 no action by the plaintiff against the
9 third-party defendant, so that's being
10 withdrawn from the jury's -- I'm denying that
11 as I'm denying 2:56.
12 MS. SCOTTO: Your Honor, I'm just not
13 clear. You denied 2:55 and 2:55A?
14 THE COURT: Yes.
16 THE COURT: And 2:56.
17 With regard to 1:77, I reserved
18 decision on that one as well, correct?
19 MS. COTTER: Yes.
20 THE COURT: That was your request?
21 MR. DURST: Yes, your Honor. We each
22 had separate requests.
24 request I think it was plaintiff and defendant,
25 correct?
1181
Proceedings
1 MS. COTTER: It was, well, separately
2 me against -- no, you denied my request on
3 that.
4 THE COURT: With regard to Mr. Durst
5 you also requested that charge.
7 THE COURT: I'm denying that charge
8 as well.
9 With regard to 2:72, that might have
10 been your request, Mr. Durst.
11 MS. COTTER: Intervening causes?
12 THE COURT: Yes. I think that was
13 Ms. Cotter's request, correct?
14 MS. SCOTTO: No, your Honor. I see
15 it in the plaintiff's request.
16 THE COURT: I think Ms. Cotter also
17 asked for it.
18 MS. COTTER: I think it was mine.
19 THE COURT: So with regard to the two
20 of you, I have reviewed all of the papers last
21 night and even though I may have initially said
22 yes, after reviewing all the paperwork that I
23 needed to review, I'm not charging that. That
24 particular section refers to a third person.
25 There is no third person here.

1182
Proceedings
1 2:120 I think that was your request,
2 Mr. Durst.
4 THE COURT: That request is denied.
5 And that refers -- that applies only to a
6 manufacturer which we do not have in this case.
7 That's as per the comments in the PJI.
8 MR. DURST: Okay.
9 THE COURT: 2:135, that was yours as
10 well.
13 request, I did not see any evidence in this
14 case with regard to warnings that would justify
15 that charge.
16 2:285, I thought I ruled on that
17 yesterday. 2:285 I'm not charging. That's
18 with regard -- does anyone have anything else
19 outstanding with regard to the items that I
20 reserved decision on? I think pretty much I
21 have covered everything that I may have
22 reserved decision on yesterday.
23 MR. DURST: Nothing more from me.
24 MS. COTTER: The 141 and 141.2, the
25 product charges.
1183
Proceedings
1 THE COURT: 2:141 and 2:141.2 have
2 been incorporated. So 2:141.2 will be the
3 fifth paragraph because that's how the comments
4 to the PJI have that set up. So that
5 particular 2:141.2 starts the beginning of the
6 fifth paragraph of 2:141. Okay.
7 MS. SCOTTO: Your Honor, there are
8 still two more issues.
9 THE COURT: With regard to the
10 charge?
11 MS. SCOTTO: Yes. Your Honor, would
12 there be any language with respect to
13 substantial modification?
14 THE COURT: Yes, I have included
15 that.
16 MS. COTTER: The second question was
17 Mr. Durst had phrased the beginning of 2:141 as
18 a -- I'm sorry, as a, I guess you would say a
19 stream of commerce, Did National Equipment
20 distribute/sell the machine period. And we had
21 drafted ours, Did National Equipment
22 distribute/sell the machine to Ferrara Foods.
23 To make a decision --
24 THE COURT: I retain the right to
25 modify those two sections in the manner that I

1184
Proceedings
1 choose to modify it without making significant
2 changes to either of those two sections, all
3 right.
4 MR. DURST: The question, your Honor,
5 is whether or not you're requiring in that
6 charge that there be a finding by the jury that
7 the product that was sold directly from
8 National Equipment Corporation to Ferrara Foods
9 or are you saying that Ferrara --
10 THE COURT: I will read what I've got
11 here. The relevant paragraph would be starting
12 with paragraph number, I guess, four.
13 "The first question you must answer
14 is whether the defendant, National Equipment,
15 was a distributor of the dough mixer in
16 question. If you find that defendant National
17 Equipment did not distribute the dough mixer
18 involved in this incident, you need proceed no
19 further. If you find that the defendant
20 National Equipment Corporation was a
21 distributor of the dough mixer in question, you
22 must then answer the question whether the
23 defendant's dough mixer was defective.
24 "Plaintiff claims that defendant's
25 dough mixer had a design defect because the

1185
Proceedings
1 dough mixer did not have an interlock guard
2 which would have automatically stopped the
3 blades in the machine if the safety grid/gate
4 was open or was not in place. Defendant denies
5 that the dough mixer was defective.
6 "If you find that the defendant's
7 product was reasonably safe for its intended or
8 unintended but reasonably foreseeable purpose,
9 you will find that it is not defective and you
10 need proceed no further in your deliberations."
11 This is where 2:141.2 is inserted.
12 "If you find that the dough mixer was
13 defective, you must next determine whether the
14 defect existed when it left the hands of the
15 defendant National Equipment. The fact that
16 the dough mixer has been out of National
17 Equipment's hands and been handled or used by
18 other persons, such as third-party defendant
19 Ferrara Foods and the plaintiff, does not
20 prevent you from drawing the inference that the
21 product was, in fact, defective when it left
22 the defendant's hands if on all the evidence
23 you find that to be a reasonable inference.
24 "If the nature of the defect is such
25 that the probability that someone else caused

1186
Proceedings
1 it is remote, then you may, if on all the
2 evidence you find it reasonable to do so, infer
3 that the defect existed when the dough mixer
4 left the hands of the defendant. If you find
5 that the defect did not exist at the time the
6 product left National Equipment, you will find
7 for defendant in this issue.
8 "If you find that the third-party
9 defendant Ferrara Foods' removal of the safety
10 grate and disconnection of the tilting
11 mechanism substantially altered the dough mixer
12 after it left National Equipment's possession,
13 then you will proceed to consider whether the
14 subsequent alteration of the dough mixer was a
15 substantial factor in causing the plaintiff's
16 injuries.
17 "If you find that the subsequent
18 alteration was a substantial factor in causing
19 plaintiff's injuries, you will find for
20 defendant National Equipment on this issue and
21 against third-party defendant Ferrara Foods."
22 Now that is a result of Robinson v
23 Reid Prentis, Court of Appeals decision at 49
24 NY2d 471, February 1980.
25 MR. DURST: I will object to that

1187
Proceedings
1 charge, your Honor.
3 THE COURT: And then it continues
4 with the balance of the pro forma charge.
5 MS. COTTER: I would just object to
6 the beginning where it doesn't reference a
7 direct sale to Ferrara Foods.
8 THE COURT: There is no need for
9 privity in this instance. This is a products
10 liability case, so privity is not an issue.
11 MS. COTTER: Could I just ask you one
12 more question? I don't remember how it read at
13 the very beginning of that. Does it say if you
14 find that defendant National Equipment did not
15 sell or provide the product proceed no further?
16 Is that in there? I believe you said it.
17 THE COURT: If you find that
18 defendant National did not distribute you need
19 proceed no further.
21 MS. SCOTTO: May the record just note
22 that I join in Ms. Cotter's objection. Thank
23 you.
24 THE COURT: Anything else?
25 MS. SCOTTO: Not with respect to the

1188
Proceedings
1 charge.
2 THE COURT: Let me get my court clerk
3 in here.
4 MS. SCOTTO: There are some issues,
5 but not with respect to the charge.
6 THE COURT: Is there anything that we
7 need to address right this second? We will
8 give the jurors as, I indicated before, Tonnaer
9 machines letters, Defendant's B, C, and D are
10 being withdrawn from the jury's consideration.
11 And I have a curative charge for them on that.
12 MS. COTTER: Can we mark them as
13 court exhibits just so that if, you know, there
14 is an appellate record they'll be in the
15 record?
16 THE COURT: No, you can still -- you
17 can keep them and you will have them with you
18 for the next go round.
19 MS. SCOTTO: Your Honor, I would just
20 ask --
21 THE COURT: Hold on one second.
23 finish my statement?
24 THE COURT: Okay.

1189
Proceedings
1 ask that those letters and the summons and
2 complaint concerning Ms. Tonnaer be marked as
3 exhibits. I understand that the jury is not
4 going to be able to consider them, but I would
5 just ask that the Court mark them as exhibits.
7 THE COURT: The summons and complaint
8 where she was a defendant and this was prepared
9 in anticipation of litigation, absolutely.
10 What else?
11 MS. COTTER: And the four letters.
12 THE COURT: What else do we have in
13 terms of evidence that needs to be remarked or
14 clarified?
15 MS. COTTER: We need to attach these
16 as court exhibits, the two videotapes that go
17 with the deposition of Miguel Rogel.
18 THE COURT: That comes in afterwards,
19 all the court exhibits will come in after we
20 are done with the case.
21 MS. COTTER: Will we go over the
22 verdict sheet at come some point?
23 THE COURT: It's coming down.
24 MS. SCOTTO: There is one exhibit,
25 your Honor, the Miguel Rogel statement.

1190
Proceedings
1 THE COURT: That statement, we are
2 making that adjustment now in terms of the
3 evidence. Initially this had been --
4 MS. SCOTTO: Plaintiff's 14.
5 THE COURT: Plaintiff's 14.
6 Thereafter, when we discussed this, Ms. Cotter
7 joined in the application with regard to its
8 admission into evidence. I believe that we had
9 this on the record in chambers before, that
10 Ms. Cotter then decided to, since this was her
11 case, to denominate that item as Defendant's, I
12 believe, G.
13 MS. COTTER: F as in Frank. G is the
14 cards, the index cards from Greenberg.
15 THE COURT: So this is Defendant's F.
16 MS. COTTER: Yes.
17 THE COURT: So we will place, when we
18 get the redacted version, we will use what we
19 have here, a copy to make redactions. It won't
20 get distributed or published to the jury until
21 the redactions are made. Once the redactions
22 are made, that copy that has been redacted will
23 have Defendant's F in evidence. And that will
24 go to the jury.
25 MS. COTTER: We have also made a

1191
Proceedings
1 record that Defendant's G which was previously
2 only marked index cards for Mr. Greenberg are
3 now in evidence.
4 THE COURT: Right and I think we did
5 that yesterday as well on the record.
6 MS. COTTER: Yes.
7 THE COURT: What other evidentiary
8 matters?
9 Now, with regard to Defendant's A, B
10 and C which were blowups of the items that had
11 been used in the videotape of Mr. Rogel, we
12 used those on one day as Defendant's A, B and C
13 when they were propped up for the jurors, and
14 we also utilized the 5 by 7s leaving the same
15 A, B and C designations on them.
16 If we -- to make it easier for
17 everyone involved, since it's the same
18 photographs only blown up, what we can do is A
19 can be A1 for the blowups, A2 for the 5 by 7s,
20 B1 for the blowups, B2 for the 5 by 7s, and so
21 on. So the jurors will not be confused. When
22 they ask for A, B and C they'll know that one
23 is a blowup and one is a 5 by 7.
24 That's the difficulty that we run
25 into when we want all of these blowups and we

1192
Proceedings
1 are using the same items over and over again,
2 one blown up and one not blown up.
3 So does that solve the problem with
4 regard to what appears to be duplicate
5 markings?
6 LAW CLERK: As long as we remove --
7 if we remove Defendant's A, a summons, Tonnaer
8 Machine business letters, dated 10/11, 11/23
9 and 5/11, if we remove those out, those are
10 gone.
11 THE COURT: Those are not in
12 evidence.
13 MS. SCOTTO: That's fine with me. So
14 A, B, C and D are gone, they are not in
15 evidence, but I would just ask that they be
16 called something, they be marked as something.
17 THE COURT: We will figure that out
18 later when I get to the court exhibits. I mark
19 everything as a court exhibit starting with the
20 marked pleadings and then I work my way down.
21 So those will be court exhibits with a number.
22 MS. COTTER: When will we redact
23 documents?
24 THE COURT: At this point it will be
25 while the jury begins their deliberations

1193
Proceedings
1 because we are not delaying summations at this
2 point. As soon as I get the verdict sheet you
3 will look at it and we will start and everyone
4 has said half an hour.
5 MS. COTTER: The only thing we have
6 is for everyone to rest and once the plaintiff
7 rests, I have a motion.
8 THE COURT: I'm going ask you to
9 reserve them until after we do the summation
10 and charge.
11 MS. SCOTTO: One of the issues that I
12 have on directed verdict would actually make a
13 difference on what the verdict sheet looks
14 like.
15 THE COURT: I'm not directing any
16 verdicts at this point. I reserve those
17 decisions. We are summing and charging and I
18 will take those up after the jury's verdict.
19 MS. COTTER: So you will hear oral
20 argument on those motions?
21 THE COURT: After the summations and
22 my charge.
23 MS. SCOTTO: Your Honor, I still have
24 one issue that was never allowed to be put on
25 the record.
1194
Proceedings
1 THE COURT: What issue is that?
2 MS. SCOTTO: Because of time
3 constraints not because you wouldn't allow me.
4 The plaintiff's expert, Dr. Paul,
5 testified about the negligence of Ferrara in
6 allowing the machine to be operated in a state
7 of disrepair and having the plaintiff work on
8 the machine in a state of disrepair. And the
9 plaintiff is not permitted to submit evidence
10 against the third-party defendant Ferrara
11 because the plaintiff doesn't have a claim
12 against Ferrara. So I would ask that that
13 testimony be stricken from the record.
14 THE COURT: Okay, Ms. Cotter,
15 anything from you?
16 MS. COTTER: I have a claim against
17 Ferrara so to the extent any testimony as to
18 their negligence, you know, contrary behavior
19 to OSHA and the like, was heard by the jury, I
20 would oppose that application.
21 MR. DURST: I oppose that application
22 as well.
23 THE COURT: So that application is
24 denied.
25 Anything else?
1195
Proceedings
1 MS. SCOTTO: One other thing, your
2 Honor. You had said yesterday you would give a
3 curative instruction with regard to the
4 comments that Mr. Durst and Mr. Cotter made
5 about the OSHA.
6 THE COURT: I have a curative
7 instruction which I already gave you yesterday.
8 MS. SCOTTO: I was actually going to
9 ask today that you not give that instruction.
10 I think it might draw too much attention to it.
11 THE COURT: Do you join in that
12 application?
13 MS. COTTER: This is the curative
14 instruction as to what?
15 MS. SCOTTO: As to --
16 THE COURT: OSHA violations, your
17 comments and Mr. Durst's comments about OSHA
18 violations.
19 MS. COTTER: I have no opposition to
20 not giving the curative instruction, no.
21 THE COURT: Let's go.
22 MR. DURST: I have one thing to say.
23 THE COURT: Off the record just one
24 second.
25 MR. DURST: No, on the record.

1196
Proceedings
3 MR. DURST: I just want to make it
4 clear that my specific objection to the 2:141
5 charge as it related to subsequent modification
6 is that the subsequent modification charge
7 should relate specifically to the alleged
8 defect in the case; that is, that there must be
9 a modification to the interlocked enclosure for
10 the hopper that is the proximate cause of the
11 accident or that removed the safety device;
12 that to say that a modification to the tilt or
13 a modification to the safety grate itself is a
14 subsequent modification which would absolve the
15 manufacturer or seller's is error, since the
16 primary claim of defect here would not be
17 affected by those modifications.
18 The modification at issue would be
19 really to the enclosure, the interlocked
20 enclosure for the safety hopper. Just to make
21 my complaint clear for the record.
22 THE COURT: Okay.
23 MS. COTTER: Could I just briefly
24 respond to that? Mr. Durst obviously is trying
25 to narrow the modification request to charge.

1197
Proceedings
1 I would -- actually my application would be to
2 broaden it. Clearly under the Robinson case
3 law, which was cited by Judge Ruiz earlier,
4 it's the removal of any safety feature, it's
5 not the actual defect that the plaintiff is
6 trying to pin on defendant/third-party
7 plaintiff.
8 In fact, in this case you have a
9 removal of safety switches, you have the
10 removal of the safety grate and you have the
11 removal of a microswitch as well as other
12 potentially key safety features. So I would
13 oppose Mr. Durst's application there and I
14 would actually request that the charge be even
15 broader.
16 MS. SCOTTO: I would just join in
17 Ms. Cotter's application.
20 THE COURT: All right, the verdict
21 sheet is here. Let's take a moment to look at
22 that before we proceed.
23 MS. SCOTTO: Can I ask you a question
24 off the record?
25 THE COURT: Yes.

1198
Proceedings
2 THE COURT: I'm going to ask everyone
3 if there are any other items that they need to
4 place on the record, that need not be done now
5 because we are trying to get through the
6 summations in a timely manner because lunch is
7 arriving at 1 o'clock.
8 MS. SCOTTO: Will the summations be
9 continuous or we are not going to go over
10 lunch?
11 THE COURT: Nothing interrupts lunch
12 especially since they are receiving hot lunches
13 that's why everybody is going to have, as they
14 explained yesterday to me, half an hour to sum
15 up.
16 MS. COTTER: My only concern is that
17 Mr. Durst --
18 THE COURT: Half an hour to sum up.
19 We are going to start now. We should be okay.
20 Quickly look at that, folks.
22 THE COURT: Quickly.
23 MR. DURST: I will certainly
24 forego --
25 THE COURT: With regard to changes in

1199
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1 the verdict sheet?
2 MR. DURST: I will forego changes to
3 the verdict sheet -- having that verdict sheet
4 in my hand when we do summations, certainly.
5 Although, you know, I will bet you that my
6 summation is not going to be reached until
7 after lunch.
8 THE COURT: That's not the question.
9 The question is, will all counsel -- it's now
10 12 o'clock. We have been in the robing room
11 with various changes that we have had to make
12 for at least an hour. The verdict sheet came
13 downstairs. Mr. Durst, you found a problem
14 with the verdict sheet which now requires
15 correction.
16 MR. DURST: Yes.
17 THE COURT: So that being said, since
18 as I explained to you all we are expecting hot
19 lunches for the jurors at around 1 o'clock.
20 It's now 12 o'clock. Yesterday everyone said
21 that they would willingly take no more than
22 half an hour for their summations. I expect
23 that's still the case today. So we will try to
24 reach everyone's summation before lunch. If we
25 don't get to them by the time the lunch

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1 arrives, then whatever is not done, we will do
2 in the afternoon. And at that point, the
3 revised verdict sheet will be available, before
4 I charge, for everyone to review.
5 MS. COTTER: Seems that we have very
6 few changes left so I have no problem
7 proceeding.
8 MS. SCOTTO: I am prepared to proceed
9 as well, your Honor.
10 MR. DURST: Me, too.
12 on the record in open court.)
13 MS. SCOTTO: Your Honor, I would
14 request the podium.
15 THE COURT: Let's just not put it in
16 the way of jurors coming in and out.
20 and gentlemen. Have a seat, everyone. And
21 yes, you guessed it, we were engaged in legal
22 issues which delayed our beginning promptly at
23 9:30, 10:00 or thereabouts. I apologize, but
24 they were inevitable and we needed to get them
25 out of the way.

1201
Proceedings
1 So now what I'm going to have for you
2 are the summations of the attorneys. Please
3 understand, ladies and gentlemen, your lunch
4 has been ordered. We anticipate it arriving
5 approximately 1 o'clock. And I promise you
6 that there will be no summations once your
7 lunches have arrived.
8 So, that being the case we are going
9 to start now. Remember what I said to you in
10 my opening statement and that was that the
11 attorneys at this point will speak to you in a
12 closing statement which is also known as a
13 summation. Again, in summing up the attorneys
14 will point out what they believe the evidence
15 has shown, what inferences or conclusions they
16 believe you should draw from the evidence and
17 what conclusions they believe you should reach
18 as your verdict.
19 Again, what is said by the attorneys
20 in summation just as what is said by them in
21 the opening statements or in the making of
22 objections are motions during the trial is not
23 evidence. Summations are intended to present
24 the arguments of the parties based upon the
25 evidence. And under our system, the defendant

1202
Proceedings
1 sums up first followed by the plaintiff.
3 Your Honor, may I have the podium moved?
4 THE COURT: Let's move it, but let's
5 move it on the side of counsel table. Good.
7 Your Honor, may I proceed?
8 THE COURT: Yes.
9 MS. SCOTTO: Thank you for your
10 patience and your attention during this trial.
11 There have been many witnesses and you have all
12 been very attentive.
13 When the judge gives you the
14 opportunity to discuss this case, I'm fairly
15 certain that each one of you is going to have a
16 different recollection of the testimony of at
17 least one witness and if that occurs, please
18 just ask for a read back of that portion.
19 And when the judge does give you the
20 opportunity to discuss this case, I'm going to
21 ask that you give each juror an opportunity to
22 voice his or her opinion, because each one of
23 you was chosen to sit on this jury and each one
24 of your opinions should be considered.
25 I am going to start by reminding you

1203
Proceedings
1 that the plaintiff only sued National
2 Equipment. The plaintiff did not sue Ferrara
3 Foods, my client, and plaintiff has no claim
4 against my client.
5 When National Equipment sued Ferrara,
6 Ferrara became a third-party defendant in this
7 action. Now, the plaintiff has the burden of
8 proving his case against National Equipment and
9 National Equipment has the burden of proving
10 its case against Ferrara. Now, the judge will
11 tell you what that burden is, but as a
12 third-party defendant, my client has no burden.
13 We don't have to do anything.
14 I'm going to start by addressing the
15 plaintiff's lawsuit against National Equipment
16 because that's the first action. Now, the
17 plaintiff claims that National Equipment sold a
18 defective piece of machinery, a dough mixer.
19 Now, the plaintiff has no direct evidence of a
20 sale of this machine from the manufacturer to
21 National Equipment or from National Equipment
22 to anyone. Now, Ferrara doesn't have to prove
23 to you from where they acquired this machine.
24 The plaintiff needs to prove that at some point
25 this machine passed through National

1204
Proceedings
1 Equipment's hands and then went to Ferrara.
2 So what has the plaintiff done to
3 prove his case to you? The plaintiff called
4 his star witness who was Margo Tonnaer from
5 Holland. Margo Tonnaer testified about a
6 machine that was manufactured and sold before
7 she was ever born. Her father-in-law's company
8 went bankrupt when she was 13 and, in fact, she
9 hadn't met her husband or her father-in-law
10 until she was 20. And her testimony was based
11 upon what her deceased father-in-law told her
12 about a business relationship that he had
13 before he ever met Ms. Tonnaer. And supposedly
14 he had this conversation with her at least ten
15 years after his business ceased to exist and
16 about 20 years before this trial.
17 Now, people tend to embellish
18 sometime about events to make themselves look
19 better. Now, her father-in-law's business was
20 described by Arthur Greenberg, the
21 vice-president of National Equipment, as a
22 small factory in Holland. Now, I want you to
23 keep in mind, Mr. Greenberg actually saw the
24 factory, he went there; Ms. Tonnaer did not.
25 It didn't exist by the time she met her

1205
Proceedings
1 father-in-law. Mr. Greenberg admits that he
2 purchased a few pieces of machinery from this
3 small factory in Holland, Machinefabriek
4 Tonnaer was the name. But Ms. Tonnaer made it
5 seem as though her father-in-law was a major
6 manufacturer.
7 She never worked for her
8 father-in-law's company, had no personal
9 knowledge about her father-in-law's company.
10 She had no personal knowledge about the
11 manufacture or the sale of this piece of
12 equipment. And, in fact, she never even saw
13 the machine in person.
14 Now, when her father-in-law
15 supposedly discussed his business transactions
16 with her, he wasn't testifying under oath. He
17 may have been -- may have just been telling a
18 tall tale or a story about some business
19 contact that he had in the United States. And
20 such a tale would probably be very impressive
21 to his young daughter-in-law.
22 When he supposedly had this
23 conversation with Ms. Tonnaer, his company
24 hadn't existed for about a decade. A lot can
25 happen in ten years. Memories can fade and, in

1206
Proceedings
1 fact, memories can be created. We don't know
2 what her father-in-law's medical condition was
3 at the time he had this. We don't even know if
4 he was able to recall events accurately when he
5 had this conversation with her. And because we
6 can't ask her father-in-law, we don't know if
7 the conversation ever took place and if it did,
8 in what context this conversation took place.
9 So Ms. Tonnaer came here and she sat
10 in that chair and she said whatever she wanted
11 about her father-in-law's company. Her
12 father-in-law is not around. There is no one
13 around from her father-in-law's company so
14 there is no one to contradict whatever she said
15 because there is no one available.
16 She also claimed she based her
17 testimony on what her husband and her
18 brother-in-law told her. Now, wouldn't you
19 think her husband or her brother-in-law have
20 more knowledge about their father's business
21 than she does? Why weren't they here
22 testifying? You should ask yourselves that
23 question. But the bottom line is, there is no
24 credible evidence of a sale of this machine
25 from Ms. Tonnaer's father-in-law's company,

1207
Proceedings
1 Machinefabriek Tonnaer, to National Equipment,
2 which then led to a sale to Ferrara.
3 Ms. Tonnaer told you that she was
4 angry with Mr. Durst because he tricked her
5 into thinking that he was a baker for some
6 assistance with this piece of machinery. Then
7 the plaintiff, through Mr. Durst, sued
8 Ms. Tonnaer. When she learned that he was a
9 lawyer, she said in her own words that she was
10 very angry with Mr. Durst and she said she had
11 a very bad argument with him about that. She
12 had to hire a lawyer and she had to pay money
13 to defend their case. But she did say it was
14 eventually dismissed and once it was over, she
15 no longer had to be mindful of what she said.
16 So why did she go from being so angry
17 at Mr. Durst to forgiving him? Well, the
18 answer to that question is an all-expense-paid
19 vacation to New York, not only for her, but for
20 her brother as well. And then just to make
21 things a little better for Ms. Tonnaer,
22 Mr. Durst threw in some money. He paid her
23 $150 an hour from the time she stepped on the
24 plane in Holland until the time she stepped off
25 the plane in Holland two days later. Money

1208
Proceedings
1 changed Ms. Tonnaer's disposition and not only
2 did it changed her disposition, it allowed her
3 to remember events that preexisted her
4 existence.
5 Her testimony is incredibly
6 unreliable. You should take Ms. Tonnaer's
7 testimony in its entirety and just throw it
8 out. If that's the only evidence that the
9 plaintiff has to show of the sale of this piece
10 of machinery from Machinefabriek Tonnaer to
11 National Equipment, then the plaintiff hasn't
12 met his burden.
13 Now, Arthur Greenberg of National
14 Equipment told you that he reviewed his records
15 which dated back pretty far and he didn't have
16 any records that show that National Equipment
17 ever had possession of this particular dough
18 mixer. And he also doesn't have any records
19 that show that this piece of equipment, this
20 dough mixer, was sold to Ferrara. He also told
21 you that there were two other companies in the
22 United States that he was aware of that
23 purchased machines from Machinefabriek Tonnaer
24 and they were Pack and Process Machinery and G.
25 Shefton & Son.

1209
Proceedings
1 Now, unlike Ms. Tonnaer,
2 Mr. Greenberg was alive when this machine was
3 manufactured and he was alive when it was sold
4 in the late 1950s. He knew Ms. Tonnaer's
5 father-in-law at the time that that business
6 Machinefabriek Tonnaer, existed. And he was in
7 the business of selling bakery equipment in the
8 late 1950s. And he was around when
9 Machinefabriek Tonnaer went out of business.
10 So his testimony is much more reliable on the
11 issue of the sale of the machine because,
12 unlike Ms. Tonnaer, he actually has personal
13 knowledge.
14 Now, this accident happened in 1995.
15 That's about nine years ago and that's a long
16 time and at that time, Edward Scoppa was an
17 employee of Ferrara Foods and he was also their
18 vice-president. At the time the depositions on
19 this case were conducted in 1997, Mr. Scoppa
20 was a vice-president. But by the time this
21 trial started in 2004, Mr. Scoppa was no longer
22 a vice-president at Ferrara and he was no
23 longer employed by them.
24 Now, you heard testimony from Ernie
25 Freymuller, the investigator that was called by

1210
Proceedings
1 Ms. Cotter and he said that he served
2 Mr. Scoppa with a subpoena in New Jersey at his
3 home. And he told you it wasn't valid because
4 it was served outside the State of New York.
5 And he tried to serve Mr. Scoppa with a
6 subpoena at Ferrara, but he was advised that he
7 no longer worked there.
8 And then you heard the testimony of
9 Mark Hinds from my office, and Mr. Hinds told
10 you that Mr. Scoppa lives in New Jersey, that
11 he works in New Jersey at Joey's Fine
12 Restaurant and he spoke with him he said he
13 wasn't willing to come to New York for the
14 trial because of his work schedule. So I
15 couldn't compel him to get here. And Mr. Durst
16 made no attempt to get him here. So his
17 deposition transcript was read to you.
18 And Mr. Scoppa said at his deposition
19 that he didn't know from where this machine was
20 purchased. And I intended upon reading that
21 transcript to you, but it was already read by
22 Mr. Durst and Mrs. Cotter. But Mr. Scoppa said
23 that in the late 1970s there was a partner at
24 Ferrara Foods by the name of Anthony Lepore,
25 but Mr. Lepore is now deceased and it was

1211
Proceedings
1 Mr. Lepore who did purchasing of machinery at
2 that time and he often shopped at auctions.
3 Now according to Mr. Scoppa this
4 machine was purchased used and it was purchased
5 used in the late 1970s. Now, there is a point
6 in Mr. Scoppa's transcript where he says that
7 he believes that he told someone that came
8 around after the accident asking questions
9 about the accident that this piece of machinery
10 was purchased from National Equipment. But
11 then he also said that this was a mistaken
12 assumption on his part. He said that some of
13 the pieces of equipment that were owned by
14 Ferrara were purchased by National Equipment,
15 so he assumed that this one was as well. But
16 when he went to search his records he couldn't
17 find any records that date back to the 1970s.
18 Mr. Scoppa said that Anthony Lepore purchased
19 quite a few pieces of equipment for this
20 cannoli line and he believed this was one the
21 pieces that Mr. Lepore purchased.
22 This machine was purchased with a
23 vision of upgrading this cannoli line in the
24 future so at the time the machine was
25 purchased, Ferrara Foods was making cannolis,

1212
Proceedings
1 but on a much smaller scale with a smaller
2 machine. So this machine sat in storage at
3 Ferrara's facility from the late 1970s until
4 1990 when Ferrara opened up its facility in
5 Brooklyn and increased the production line.
6 In Mr. Scoppa's transcript he was
7 asked how much was paid for this piece of
8 equipment and he said he didn't know because he
9 didn't have any records, but he estimated the
10 value of the machine to be between $5,000 and
11 $10,000. Now, does it make sense that Ferrara
12 spent between 5 and $10,000 in the late 1970s
13 to purchase a machine that they envisioned on
14 using on a production line that didn't exist at
15 that time and then waited 12 years to use it?
16 What makes more sense is that Ferrara
17 purchased this machine at an auction at a
18 discount and then stored it for 12 years until
19 the production line was up and running. There
20 is no credible evidence that this machine was
21 ever sold by Machinefabriek Tonnaer to National
22 Equipment and then was sold by National
23 Equipment to anyone.
24 Now, you may be wondering why I
25 didn't call any witnesses and as I told you, as

1213
Proceedings
1 a third-party defendant I don't have a burden
2 and I don't have to do anything. But the
3 witnesses that I could have called were Anthony
4 Lepore, who is deceased and Edward Scoppa, who
5 I couldn't compel to appear here. So I saw no
6 point in calling a witness from Ferrara just to
7 tell you that Ed Scoppa no longer works there
8 or to tell you that they don't know where the
9 machine was purchased from because they don't
10 have any records. That would be a waste of
11 everybody's time and besides you have heard
12 from enough witnesses already.
13 But now I want to turn to National
14 Equipment's claims. National Equipment claims
15 that Ferrara is responsible for the accident
16 for failing to train the plaintiff. But the
17 evidence doesn't support that claim. And I'm
18 going to take you through it.
19 Mr. Rogel was a former employee of
20 Ferrara and he was the plaintiff's only
21 supervisor at that Brooklyn location. And he
22 testified in that videotaped deposition. And
23 you can tell he was trying very hard to recall
24 the facts, but it was a long time ago and he
25 had some difficulty. So he looked at his

1214
Proceedings
1 statement to refresh his recollection. But he
2 was still having difficulty remembering. And
3 what you should take from Mr. Rogel's testimony
4 is the one theme that he repeated without
5 having to look at his statement and that was
6 that the plaintiff was trained to never put his
7 hand into the moving blades of the dough mixing
8 machine.
9 He told you that he didn't write that
10 statement himself and he assumed that what was
11 written down was what he said to the person,
12 but he wasn't sure. His signed statement isn't
13 reliable because he told you that although he
14 can speak and read English now, his ability to
15 read English at the time that he signed that
16 statement was very limited. And he wasn't sure
17 what it said even when he signed it.
18 In fact, even in 2004, he is still
19 not that comfortable with English. He
20 testified with the assistance of a Spanish
21 interpreter at his deposition at his request.
22 So there is nothing that shows that his
23 statement is reliable.
24 What we do know though is around 1990
25 Ferrara took this machine out of storage. They

1215
Proceedings
1 stepped up their production line of cannoli in
2 Brooklyn and this machine was used from 1990
3 until the date of the accident without
4 incident. The plaintiff worked at Ferrara for
5 months before the accident and Mr. Durst told
6 you in his opening statement that the plaintiff
7 only worked on this machine for two days before
8 the accident. But the plaintiff testified
9 during cross-examination that at least two
10 months before the accident he was using that
11 machine to mix the dough, he was pouring the
12 ingredients in and he was mixing dough in it.
13 And Mr. Rogel said that the plaintiff
14 was trained on the machine by Mr. Rogel himself
15 for at least five days. So the plaintiff
16 worked on this machine many times before the
17 accident. And by the plaintiff's own testimony
18 on cross-examination, he said that he was told
19 by Roman, a co-worker, to never stick his hands
20 into the moving blades of the mixing machine.
21 Now, the plaintiff said he worked on
22 this machine for three hours on the Friday
23 before his accident. And on the Friday before
24 the accident, he removed the dough from the
25 machine, but not only did he remove the dough,

1216
Proceedings
1 he shut it off before he removed the dough from
2 it, just like he was trained to do.
3 Now, on the Monday before the
4 accident, he worked on the machine the whole
5 day. And he said he turned the machine off
6 each time before he removed the dough from the
7 machine, which is just what he was trained to
8 do. Now, on Monday he also cleaned the machine
9 and he shut the machine off just as he was
10 trained to do before he cleaned it.
11 Now, on the day of the accident he
12 worked on the machine for the entire day up
13 until 4:30 when his accident occurred. He said
14 he mixed eight to ten loads of dough that day
15 and each time before he removed the dough from
16 the machine he shut the machine off just as his
17 training implied, just as his training was
18 expressed that's what he was supposed to do.
19 Mr. Durst made a point to say that
20 the plaintiff was removing dough from the
21 machine at the time of the occurrence, that he
22 wasn't cleaning the machine. But at the time
23 of the plaintiff's accident it was the end of
24 the day and he was removing the last bits of
25 dough from the machine. Now, it's just a

1217
Proceedings
1 matter of semantics. Does it matter whether we
2 say he was cleaning the machine or he was
3 removing some bits of dough from the machine?
4 Because in the end it's the same thing.
5 Now, the plaintiff said he doesn't
6 know why the dough formed into the shape of
7 balls, he said that that doesn't usually
8 happen. So this was something new. And for
9 some reason only known to Mr. Rodriguez he
10 decided to catch those balls as the blades
11 turned and those balls popped up into the air.
12 But he did that without shutting the machine
13 off. And that's what he was trained to do is
14 to shut the machine off.
15 Now, the plaintiff said every other
16 time that he used that machine with exception
17 of the time of his accident, any time he
18 removed dough or cleaned the machine he shut it
19 off. But this time, he decided to do what he
20 claims he saw other employees doing, removing
21 the dough with the machine on. Well, this goes
22 against his training and it defies common
23 sense. He did exactly what he was trained not
24 to do. And common sense dictates that you
25 don't stick your hands into the moving part of

1218
Proceedings
1 a machine no matter what anybody else is doing.
2 You saw the video inspection of the
3 this machine with respect to this case. You
4 saw the machine, you saw the size of it, you
5 saw the size of the blades and you saw the
6 blades turning in the video. They are very
7 large blades and you saw them turning. And, in
8 fact, the plaintiff said that the machine made
9 noise. So he knew the machines were was on, he
10 saw the blades turning, it was obvious that the
11 machine was on and the only reason that the
12 plaintiff sustained an injury is because he
13 decided to stick his hand into the moving
14 blades.
15 We are here because the plaintiff was
16 reckless. It doesn't take an MIT graduate to
17 figure out that you don't put your hand into
18 the moving part of a machine. And if anyone
19 did anything wrong it was the plaintiff. The
20 plaintiff was in the best position to avoid his
21 injury and if he didn't stick his hand into the
22 moving blades, the accident never would have
23 happened.
24 Now, Mr. Visser was the engineer
25 called by Ms. Cotter and he conceded that

1219
Proceedings
1 proper training included instructing employees
2 not to put their hand into the moving part of a
3 machine. The plaintiff knew that, that was his
4 training, his training was proper, but he just
5 chose not to follow it.
6 I want to talk to you about the
7 plaintiff's injury itself. I told you in my
8 opening that the plaintiff does have a serious
9 injury, but he caused that injury. Now, he
10 claims that he can no longer work. And you
11 heard testimony from Albert Griffith and James
12 Pascuiti concerning the plaintiff's
13 employability. It doesn't make sense to accept
14 what Albert Griffith said that there is no job
15 in the world that the plaintiff can do. But
16 James Pascuiti said there are a lot of jobs out
17 there in the world that the plaintiff can't do,
18 but there are some that he can do. And one of
19 jobs that he said was the plaintiff could work
20 as a security guard, monitoring security
21 cameras in an airport or in an office building.
22 And then he'd alert someone if he saw something
23 on the individual camera.
24 He also said that the plaintiff could
25 work as a crossing guard. He said the

1220
Proceedings
1 plaintiff was able to drive. In fact, the
2 plaintiff testified that he was able to drive.
3 And if he were to get a driver's license, then
4 he would be able to work as a driver for a car
5 service.
6 The plaintiff's physical limitations
7 are not the only reason that he hasn't been
8 able to find work. His inability to speak
9 English well when he arrived here from Mexico
10 is one the things to be considered; his
11 inability to pick up the language since he has
12 been here; his failure to look for work and his
13 educational level, all add to his employment
14 difficulties. But those limitations weren't
15 caused by the accident. And they are not
16 related to the accident. There are jobs
17 available, but the only jobs that the plaintiff
18 chose to look for were jobs in local grocery
19 stores and he only looked for a few months. If
20 he used the services of an employment agency
21 and expanded the types of jobs that he looked
22 for, there is work available for him.
23 Now, Mr. Durst is going to stand
24 before you today and he is going to ask you to
25 award his client millions of dollars. But this

1221
Proceedings
1 case isn't just about compensating the
2 plaintiff for the injury that he has. And like
3 you, I feel badly for the plaintiff for the
4 injury that he has, but this case is about
5 doing justice for all of the parties and
6 following the law the way the judge gives it to
7 you. As jurors, you hold great power because
8 the verdict that you render is going to affect
9 each one of the parties.
10 Now, each one of you promised in jury
11 selection that if the plaintiff couldn't prove
12 his case and if the evidence showed that the
13 plaintiff caused his own accident, that you
14 would turn him away. Now, I told you in my
15 opening statement that I was going to ask you
16 to return a verdict against the plaintiff at
17 the conclusion of the trial and now that you
18 have patiently listened to all the evidence,
19 I'm going to ask you to return a verdict
20 against the plaintiff, because he is the only
21 one that caused his injury, and not award him
22 any money.
23 Thank you.
24 THE COURT: Thank you, Ms. Scotto.
25 Ms. Cotter.
1222
Proceedings
2 Good afternoon. Thank you for your
3 patience over the last almost three weeks. We
4 truly appreciate your time. Thank you for
5 listening to everything you have heard
6 throughout the trial.
7 What was the first thing I said to
8 all of you when I began my opening statement
9 few weeks ago? A tragic accident occurred on
10 March 14, 1995 and it's because of that tragedy
11 that an injury was sustained by Mr. Rodriguez.
12 Now, don't think for a minute that me
13 or my client do not see that and that we are
14 trying to minimize it. Like you, we wouldn't
15 want it to happen to ourselves or someone close
16 to us in our lives. But there are several
17 parts of the case, two parts primarily, and
18 when we chose you all as jurors we talked about
19 those. There is the fault aspect of the case
20 that you will have to evaluate and then there
21 is a damages aspect. And you promised me when
22 you were chosen as jurors that you wouldn't let
23 sympathy interfere with any decisions you make
24 in this case. And you would look at all the
25 evidence and take your time in your

1223
Proceedings
1 deliberations.
2 Now, I'm going to talk about damages
3 first, but before I even get to damages I want
4 to go through a few other points with you.
5 Remember, this is the last time you are going
6 to hear from me. When I sit down, you will
7 have lunch and this afternoon you are going to
8 hear from Mr. Durst and he is the last person
9 you are going to hear from. I'm not going to
10 have an opportunity to stand up when he is done
11 this afternoon and respond to whatever he says.
12 So just keep that in mind.
13 And without a doubt he is going to
14 ask you for a lot of money. He might ask you
15 for close to a million dollars in this case. I
16 want to impress upon you, and the judge will
17 instruct you on this as well, Mr. Durst's
18 number, whatever number he may put on this
19 case, is not written in stone. It's his number
20 and just that. It's your job to evaluate this
21 case, the fault aspect of it and also the
22 damages, and to come up with any number you
23 come up with, if at all.
24 Now, I remind you that whatever
25 number Mr. Durst may put on this case is his

1224
Proceedings
1 wish list and his client's wish list. Again,
2 there is nothing written in stone and it's your
3 job to evaluate all those sorts of things in
4 this matter. Now, you need not give his client
5 anything or you may determine, you know,
6 something else as you evaluate the damages in
7 this case if you even reach damages.
8 Now, I ask you to hold Mr. Durst to
9 his burden of proof. He has the only burden of
10 proof against my client, National Equipment.
11 Now, Mr. Durst may also stand up and say, Well,
12 why did they call all those witnesses if, you
13 know, if they are saying, you know, they had
14 nothing to do with this machine. You better
15 believe we call witnesses in this case; we are
16 being sued.
17 My client was asked when he took the
18 witness stand, do you have a financial interest
19 in this case? You better believe he has a
20 financial interest in this case. And he was
21 sued and Mr. Durst put on a slew of experts.
22 Sure we had to bring in experts to respond to
23 his claims and his false allegations. My
24 client has been falsely accused of selling and
25 passing on a machine that ended up being in the

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1 hands of Ferrara Foods in some way and
2 ultimately the plaintiff was injured.
3 Now, let's talk about damages.
4 Mr. Rodriguez sustained a serious hand injury,
5 he lost three fingers and part of him thumb.
6 Now, on damages you heard from his doctor
7 Dr. Eunice and you also hear from an employment
8 expert Mr. Griffith. And they told you that
9 the plaintiff is disabled with respect to his
10 right hand. Mr. Griffith specifically told
11 that you he cannot work at anything.
12 Now, Dr. Eunice and Dr. Griffith both
13 conceded that the plaintiff can still have
14 extensive reconstructive surgery. He can have
15 rehabilitation. He can have occupational
16 therapy. Unfortunately, he could have been --
17 more of those two things, occupational therapy
18 and rehabilitation, could have been recommended
19 by his physicians but they weren't. And also
20 there is more prosthetics out there that
21 perhaps he could try out and find to be more
22 comfortable.
23 Dr. Griffith also admitted that on
24 the one hand while he is stating that the
25 plaintiff cannot do anything, Mr. Rodriguez can

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Proceedings
1 walk. He can lift up to 50 pounds. He can
2 bend, sit, stand and stretch. And remember,
3 Dr. Griffith was paid for two days. He was
4 brought in one day and we never got to him, so
5 he had to come back the next day. He was paid
6 several thousand dollars each of those days by
7 Mr. Durst. He only met Mr. Rodriguez for two
8 hours. Yet he made some very, very crucial and
9 important determinations with respect to what
10 he testified to at this trial.
11 He also admitted that employment
12 expert is only one of several hats he wears.
13 Mr. Griffith is also a psychologist. He is a
14 vocational rehabilitation and also a
15 professional consultant on cases. He performed
16 no labor market analysis for this young man,
17 but he quickly and conveniently concluded that
18 Mr. Rodriguez can do nothing.
19 Compare that to Jim Pascuiti who you
20 heard from last week. Now Jim Pascuiti was not
21 clearly defendant oriented. He sat here and he
22 told that you I'm not going to lie there is
23 many things this young man can't do, but what
24 I'm telling you is that if he was motivated and
25 wanted to do something, there is plenty of jobs

1227
Proceedings
1 out there that he can do.
2 He can be in sales. He can be a news
3 vendor. He can work in security. He used an
4 analysis where if you go ten to 15 blocks away
5 from this courthouse, there is plenty of auto
6 body shops that need bilingual individuals to
7 greet people and ask them what the problem is
8 with their cars and direct them to the right
9 person at the auto body shop.
10 He wasn't saying he is going to get
11 up underneath the cars necessarily and do
12 technical mechanical work. He came in here and
13 he was honest with you. There is plenty of
14 jobs this young man can do if motivated and if
15 he wants to.
16 Let's talk about the negligence of
17 Mr. Rodriguez. Mr. Durst has proceeded through
18 this trial arguing that his client was
19 unloading the mixer as opposed to cleaning it
20 at the time of the accident. Yet although most
21 of the testimony you have heard -- and, you
22 know, if you think about it, most of the
23 testimony is that he was, in fact, cleaning it.
24 But what I submit to you is that by his own
25 admission, whether he was cleaning it or he was

1228
Proceedings
1 unloading it, he was at the very bottom and
2 there was very little left. And he was dealing
3 with little lumps, he called them little balls
4 of dough, like baseballs he said. Some were
5 baseball size, some smaller, some a bit bigger.
6 And he said that he left the blades on so the
7 blades would toss of the little lumps or balls
8 into the air, he could reach them, he could
9 grab them.
10 Now, he had done that routine eight
11 to ten times prior to that. It was only the
12 second or third day he worked with the machine.
13 And he had turned -- he admitted to you that he
14 had turned the machine off when he got to that
15 stage of the unloaded process for the eight to
16 ten times he had done that prior to that day.
17 But unfortunately, the time that his accident
18 happened he doesn't turn the machine off. And
19 he admitted that to you, the machine was on.
20 Who else did you hear from with
21 respect to what happened? You heard from
22 Arthur Greenberg, my client, who is in the
23 courtroom today. And you also heard through
24 the read transcript, Edward Scoppa for Ferrara
25 Foods. They testified and told you that they

1229
Proceedings
1 had heard from being at the factory and from
2 speaking to people who were there that
3 Mr. Rodriguez was, in fact, cleaning the
4 machine at the time of his accident.
5 You also heard through the videotape
6 from plaintiff's supervisor, Miguel Rogel, he
7 was there at the time. Now, he has no interest
8 in this case. He is not a named defendant. He
9 was good enough to come up from Maryland. He
10 didn't have to respond to a subpoena. He was
11 subpoenaed to New York, but he was good enough
12 to come up from Maryland and allow us to tape
13 his deposition. He had no reason to lie. He
14 said he liked the plaintiff. The plaintiff was
15 a decent worker. He still got along with
16 Ferrara Foods. He has no relationship, didn't
17 even know who my client, National Equipment,
18 was. And he told you that the plaintiff was
19 cleaning the machine. It was the end of the
20 day and he was cleaning the machine and he had
21 been told on the prior occasions and during the
22 time he was trained by Ferrara to always turn
23 the machine off before he cleaned it.
24 Now, let's talk about the fault
25 portion of the case. When you were chosen as

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Proceedings
1 jurors in this case, you were told you were
2 stepping into playing an important role to do
3 an important job. And Mr. Durst may stand up
4 in front of you this afternoon, he is going to
5 be looking for justice for his client. And
6 what I ask you is, What about justice for
7 National Equipment? What about justice for
8 Arthur Greenberg? He has been unjustly
9 accused. He has been falsely accused. And
10 when it's raised, why did you call all those
11 experts? Why did you pay all these people? Of
12 course we did. We have to defend ourselves.
13 We didn't have to call in a single witness,
14 Mr. Durst has to prove his case against us, but
15 we did.
16 That brings to me to one of the most
17 important questions of several you will decide
18 and Judge Ruiz will instruct you on the law,
19 but you will have to decide whether National
20 Equipment sold or distributed this machine.
21 Now, let's look at all the evidence you have
22 heard during this trial to evaluate whether
23 National Equipment sold or distributed this
24 machine to Ferrara.
25 The plaintiff submitted several

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Proceedings
1 documents and witnesses, documentary evidence
2 and witnesses on the fault aspect of the case.
3 Now, not one single piece of paper, not one
4 document links my client, National Equipment,
5 to the mixer involved in Mr. Rodriguez's
6 accident. You heard the testimony of Edward
7 Scoppa. What did Edward Scoppa tell you? He
8 told you -- and I believe Mr. Durst read it on
9 his case -- he is not a hundred percent sure
10 where Ferrara got that mixer. He did tell you,
11 and Mr. Durst read it and I read it as well, he
12 does remember that the mixer was bought used,
13 secondhand. Mr. Scoppa's testimony was also
14 read where he was confronted, did he ever say
15 he got it from National Equipment and he
16 explained, well, there was one time period
17 where we did get a few pieces and I thought
18 that was one of them, but then I went back and
19 I checked for records and we really have no
20 records that we got it from them. So no, I'm
21 not sure where we got that mixer involved in
22 the accident.
23 And remember, Ed Scoppa has no
24 allegiance to my client, National Equipment.
25 He has no reason to lie for my client. He

1232
Proceedings
1 works or he used to work, former employee, of
2 Ferrara Foods. So he has no reason to lie
3 during his deposition or at any time for my
4 client.
5 Let's talk about Margo Tonnaer. Now,
6 Mr. Durst, has referred back to Margo Tonnaer,
7 his star witness, several times with our
8 witnesses throughout the case, even the
9 liability experts. Let's focus on two things
10 about her. One, she has no personal knowledge
11 with respect to whether this exact dough mixer
12 which has no serial number on, never examined
13 it in person, only saw photographs of it
14 several years ago, she has no personal
15 knowledge of if or when it was transported from
16 Holland to New York, and then from someone in
17 New York to Ferrara Foods. She has no personal
18 knowledge.
19 She took this witness stand and her
20 testimony was based on three things:
21 Conversations with her father-in-law,
22 conversations with her husband, conversations
23 with her brother-in-law. She admitted to you
24 that she wasn't there in the '50s when she said
25 this machine was manufactured and sold. She

1233
Proceedings
1 could tell you that it was, in her opinion it
2 was manufactured and sold in the 1950s before
3 she was born. Was she was born in 1960. She
4 admits that she was only 14 years old when her
5 father-in-law's company went out of business.
6 And she admitted that her father-in-law died
7 almost 15 years ago. Yet she had the nerve to
8 take that witness chair in this courtroom and
9 try to help Mr. Durst with his case.
10 But even so, she didn't give
11 Mr. Durst an answer which she can support with
12 any documents, not one piece of paper. She
13 testified that she recalled old, old documents
14 from when she was learning the business. None
15 of those documents she had with her, by the
16 way. Now, how difficult was it? She made all
17 these efforts to get on a plane and come here,
18 according to Mr. Durst, but she couldn't even
19 find one piece of paper. Yet she walked into
20 this courtroom and said that at some point
21 through conversations with different people
22 when she was learning the business in the
23 1980s, 20 years ago, National Equipment was an
24 exporter. She could name no others. But who
25 named others for you? Mr. Greenberg named

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Proceedings
1 others for you, Shefman & Sons and Pack and
2 Process, G. Shefman & Sons and Pack and
3 Process.
4 Remember the analysis I used with
5 respect to a blender on my opening statement?
6 Where can you buy a blender? You can buy a
7 blender at Macy's, Target, Sears. In this case
8 by pointing to National Equipment they may as
9 well be referring to a needle in a haystack
10 with respect to this specific mixer.
11 Margo Tonnaer admitted she had no
12 personal knowledge. Again, she was only a
13 young teenager in the 1970s when her
14 father-in-law's company when out of business.
15 She testified that the machine was bought and
16 sold in the 1950s new from her father-in-law's
17 company. Well, it was in 1979 that Edward
18 Scoppa, his testimony was read to you, 20 to 25
19 years after that alleged manufacture and
20 original sale, that Ferrara bought it used.
21 So what do we do with this gap of 22
22 to 25 years. Margo comes in and tells you it
23 was manufactured and originally sold in the
24 1950s and then Ed Scoppa 20 to 25 years later
25 buys it used, perhaps at an auction because a

1235
Proceedings
1 lot of pieces at that time were bought at an
2 auction. So I ask you, where is one record,
3 one piece of paper from Margo Tonnaer linking
4 this machine or any Tonnaer mixer to National
5 Equipment?
6 We did have Margo refer to a letter
7 where she admitted that she once wrote to
8 Mr. Durst.
10 THE COURT: Sustained and stricken.
11 MS. COTTER: Whether NEC --
12 THE COURT: Sustained. That is
13 stricken.
14 MS. COTTER: Now, you will remember
15 again that Mr. Greenberg did name the two other
16 sellers and he has personal knowledge. He was
17 there. He has been over to Holland and he met
18 her father-in-law and he told you that he
19 didn't even start dealing with Machinefabriek
20 Tonnaer until the 1970s. That's, again, it's
21 20 plus years after Margo Tonnaer says this
22 machine was manufactured by her father-in-law's
23 company.
24 Remember, Arthur Greenberg has
25 first-hand personal knowledge. Margo Tonnaer

1236
Proceedings
1 came in here basing all of her testimony on no
2 personal knowledge, but conversations with
3 different people and meeting Arthur Greenberg
4 at a fair. Meeting someone at a fair clearly
5 does not suffice as any link between the mixer
6 involved in the accident and my client.
7 So why would Margo Tonnaer come to
8 court and lie, Mr. Durst might ask you. Money.
9 Even if she was candid about the $150 an hour
10 she was receiving from the moment she got on
11 the plane in Holland to the moment she got off
12 the plane in Holland, if you count her time in
13 New York, she was put up in a very nice hotel
14 in midtown Manhattan. You have to count her
15 flight time, her meals, her brother's flight
16 time, his meals. She is paid well over
17 $10,000. That's what we know about. And I
18 submit to you, that she and her brother got a
19 nice little vacation to New York and they saw
20 midtown Manhattan and they were shown a very
21 nice time in New York City. And at the end of
22 it all they actually got rid of Mr. Durst.
23 Mr. Durst, whom Margo Tonnaer admitted to you
24 been in touch with her for the past eight or
25 nine years. She was the one sued.

1237
Proceedings
1 Now, let's look at defendant National
2 Equipment's witnesses and documents on the
3 fault aspect of the case. Edward Scoppa, you
4 heard his testimony. He is Ferrara's
5 vice-president. Now again, he has no interest
6 in National Equipment, never worked for
7 National Equipment. Has no allegiance to
8 National Equipment. He was an employee of
9 Ferrara Foods.
10 Now, he testified that the mixer was
11 brought used in 1979. Now, Margo Tonnaer said
12 the mixer was manufactured in the '50s and sold
13 around that same time. Now, Mr. Durst might
14 try to tell you that the mixer was bought new
15 in the 1950s. Again, I remind you, common
16 sense, if it was bought new in the 1950s it
17 doesn't make sense. Ferrara said they bought
18 it used in the late 1970s. Mr. Greenberg
19 testified that he didn't even start doing
20 business with Machinefabriek Tonnaer until the
21 1970s. And although Mr. Durst will try to tell
22 you he was too young, he wasn't vice-president
23 of National Equipment in the 1950s, his father
24 may have dealt with Machinefabriek,
25 Mr. Greenberg was very involved in his father's

1238
Proceedings
1 company with his father and his uncles when he
2 was a very young man in the 1950s. And he knew
3 the business very well then. Sure he hadn't
4 become an officer, a vice-president, but he
5 knew the company. And he knew that prior to
6 the 1970s they had no interaction with
7 Machinefabriek Tonnaer.
8 Now, what else did Arthur Greenberg
9 have that Margo Tonnaer or no other witness
10 produced by the plaintiff did not have?
11 Remember the index cards? He made a search and
12 he came into this courtroom and he referred to
13 six index cards which show you, and they are in
14 evidence now so at your leisure when you are
15 deliberating you can ask the Court to see
16 these. And what these show you is these are
17 the mixers that National Equipment, the Tonnaer
18 mixers that National Equipment sold or
19 distributed. And what each of them tell you is
20 what kind of mixer it was. Like, for example,
21 here's one, it's a gum mixer, the date it was
22 sold, who it was gotten from. The first one
23 was received from Reid Candy Company and it was
24 ultimately sold to a company called Sergio not
25 Ferrara. The second one was a gum mixer as

1239
Proceedings
1 well and it was purchased in April of 1979 also
2 from Reid Candy Company and ultimately sold to
3 Thomas Food in 1983.
4 And then you have one also a Tonnaer
5 mixer. This one happens to be a single arm. I
6 remind you that several witnesses testified
7 that the photographs -- the machine involved in
8 the accident is a double arm. It was bought in
9 March of 1980 from Suchart (phonetic) and
10 ultimately sold to Annabelle Candy Company in
11 February of 1981. And then you have one that
12 was also a single arm mixer bought in March of
13 1980 and ultimately sold to Hollywood Brands in
14 November of 1981. And then finally you have
15 one bought from National Chickle in March of
16 1983, sold in September 1983. None of them
17 passed on to Ferrara foods. These are the
18 records.
19 A search was made for Tonnaer mixers
20 that we passed on and this was what was in the
21 file. And Mr. Greenberg was confident in his
22 record keeping. And finally, the last one was
23 bought from Hollywood Brands on January 31st,
24 1984 and sold to a company by the name of
25 Wisconsin on May 2, 1984. Again, this is in

1240
Proceedings
1 evidence. You can ask the Court to see it as
2 you deliberate.
3 Now what else did Arthur Greenberg
4 tell you? He looked at photographs of the
5 machine and he had been at the inspection.
6 Now, again unlike Margo Tonnaer or any one of
7 plaintiff's witnesses, he not only inspected
8 the machine after he was sued he looked at
9 photographs of it. And what did he tell you?
10 He said it's nothing like we ever sold or
11 reburbished new or used. He said it was much
12 smaller. He said the Tonnaer mixers he dealt
13 with were much larger, almost twice the size.
14 And he also said this mixer appeared to be a
15 different power, it was different. It was
16 much -- it was hydraulic powered as opposed to
17 or it was motor powered as opposed to hydraulic
18 powered, which was mixers he was normally used
19 to dealing with.
20 So he said it was nothing like he had
21 ever dealt with or bought or sold new or used
22 from Tonnaer or passed on. Whose testimony was
23 consistent with Arthur Greenberg's on that
24 issue was Terrence Saachi. You will remember
25 that that was another transcript that I read

1241
Proceedings
1 with someone from my office, Terrence Saachi,
2 who is dying now and wasn't able to come into
3 the court.
4 He testified at his deposition that
5 he looked at photographs of this machine. He
6 had worked -- he is almost 90 now, so he had
7 worked at National Equipment 35, 40 years
8 refurbishing different machines and he
9 testified that the arms on the machine involved
10 in the accident were like something he had
11 never seen before. Now, he also testified,
12 Terrence Saachi, that he only recalled
13 refurbishing Tonnaer chewing gum machines,
14 which are machines used for candy. And he only
15 recalled selling Ferrara cutting machine.
16 Now, Mr. Miguel Rogel and the
17 plaintiff, you will refresh your recollection,
18 Miguel Rogel was plaintiff's supervisor. They
19 also testified that they had no idea where
20 their employer, Ferrara, got the machine from.
21 Now, that brings us to another question you are
22 going to have to make an important decision on.
23 If you find that National sold this machine,
24 you are going to have to find -- you are going
25 to have to determine whether the machine was

1242
Proceedings
1 defective when it left the hands of National
2 Equipment. Now, the evidence you have heard at
3 this trial suggests that the machine was fine
4 even if and when National Equipment had
5 possession of it.
6 Now, I'm going to use a word from
7 Mr. Visser, who was one of the experts. This
8 machine was cannibalized. Virtually all safety
9 features, once it was received by Ferrara Foods
10 while it was in the possession of third-party
11 defendant ferrara Foods, virtually all the
12 safety features of this machine were removed or
13 to use the words gems of Mr. Visser
14 cannibalized.
15 Now, you heard from Igor Paul, the
16 plaintiff's expert and you also heard from an
17 expert for defendant, Phillip Visser. Now Igor
18 Paul, he is the plaintiff's liability expert,
19 came into this courtroom, $350 an hour, sat
20 here for an afternoon one day and then I
21 believe at least the morning the next day.
22 Now, we know he is an expert in a lot of
23 things, he told you, an expert in helmets, golf
24 clubs, water skis, you name it he was an
25 expert. Keep in mind he never, unlike my

1243
Proceedings
1 expert, he never examined the actual machine
2 involved in the accident. And he also admitted
3 to you he often doesn't have all the facts of a
4 case before doing his analysis.
5 Now, Mr. Paul also admitted that the
6 standards upon which he based his opinion that
7 the mixer involved in the accident was
8 defective because it lacked an interlock on
9 grate are merely guides or advisory opinions.
10 He admitted they weren't laws or regulations
11 like OSHA. He also testified that the 1929
12 Handbook of Industrial Standards and 1949
13 Geneva Model Code for the Guidance of
14 Government and Industry, he testified that of
15 those two, the 1929 code was the more
16 controlling and authoritative.
17 Now, let's look at the 1929 code.
18 Igor Paul on examination by Mr. Durst,
19 testified that the standard required tilting
20 dough mixers like the one involved in the
21 accident to have an interlock and cover so that
22 the power cannot be applied to the blades
23 unless the cover is in place. Now, remember
24 there was a second option that I got him to
25 admit to on cross-examination. Funny enough,

1244
Proceedings
1 on direct examination by his lawyer he didn't
2 let you know about this second option that this
3 machine had. Mr. Paul was silent as to that
4 until I questioned him on cross-examination.
5 Now, you will recall that the 1929
6 standards regarding the necessity of interlocks
7 on the horizontal tilting type mixers, the
8 grate on those is an either/or provision. That
9 is, it states that a manufacturer may also
10 choose to have an automatic power cutoff when
11 the bowl is tilted from the horizontal mixing
12 position to the vertical unloading position.
13 And this machine had that.
14 Igor Paul, he conceded that this
15 machine had that second option. Now, Phillip
16 Visser then testified and with regard to that
17 1929 standard, he confirmed that the mixer
18 involved in the accident -- and remember he
19 inspected the actual machine Igor Paul did
20 not -- did have that second option, the
21 automatic power cutoff when the bowl is tilted
22 from the horizontal position to the vertical
23 unloading position. And according to
24 Mr. Visser the mixer did comply with the 1929
25 standards.
1245
Proceedings
1 Now, again, this afternoon Mr. Durst
2 may quote testimony, I have the testimony as
3 well. Keep in mind you have every right to ask
4 for read backs, and don't simply defer to what
5 Mr. Durst reads. If, you know, he can
6 cherrypick those portions of the testimony that
7 suit his case. And I remind you that you have
8 every right to have a read back and ask for
9 that if you feel like you need it.
10 Now, on cross-examination of
11 Mr. Visser, Mr. Durst brought up the need for a
12 stationery cover which encloses the bowl while
13 the bowl is in the mixing position. Now,
14 stationery was never defined. I submit to you
15 that that part of the cross-examination was
16 nitpicking. He showed Mr. Visser a photograph
17 of a different type mixer. Said Mr. Visser,
18 isn't it supposed to have this kind of
19 enclosure? That's the kind of grate it was
20 supposed to have? And Mr. Visser said no. His
21 testimony was that this machine was in
22 compliance at the time it was sold with the
23 1929 standards.
24 I submit to you that the
25 confrontation with Mr. Visser was an attempt to

1246
Proceedings
1 find some nonconformance with the standards, a
2 desperate attempt. And the reality is that the
3 standard gave a manufacturer a second option,
4 the automatic shut off operates when the mixer
5 was moved from the horizontal to the vertical
6 position. Not only did the mixer involved in
7 the accident have the automatic shut off, but
8 as Visser told you, the switches that
9 controlled that automatic shut off were yet
10 another part of the machine that had been
11 cannibalized. Those switches had been removed
12 by the employer. Pictures of the place where
13 those switches were are also in evidence for
14 you to ask for and take a look at if need be.
15 They are Defendant's D and E in evidence.
16 You will recall that they were two
17 photographs of the places where those safety
18 switches used to be. There used to be switches
19 in these places that controlled the automatic
20 shut off that Mr. Visser testified was present
21 on this machine and made it in conformance with
22 the standards. And unfortunately, the employer
23 removed those switches.
24 Let's look at the 1949 Geneva Code.
25 Visser explained that the interlock cover was,

1247
Proceedings
1 not necessary on this machine according to that
2 code because there was another interlock in
3 place, again the automatic switch off. He
4 testified on redirect examination by me that
5 the automatic shutoff interlock would take the
6 place of the other that Mr. Durst
7 cross-examined him on. Now, the 1947 American
8 Standard Safety Code for Bakery Equipment,
9 portions of that are in evidence.
10 Now, I remind you, when did we first
11 hear about the American Standards Safety Code
12 for Bakery Equipment? We heard it through my
13 expert. Plaintiff's expert testified first.
14 Funny enough, he didn't even comment on it.
15 And what I submit to you is that if it was that
16 important and controlling, why didn't his
17 expert comment upon it? When my expert took
18 the stand the bakery code was taken from him
19 and he was questioned on it.
20 Now, again, I remind you no matter
21 what portions of testimony are read to you, the
22 testimony on redirect was, I said, Mr. Visser
23 in your opinion, was the machine at the time it
24 was sold in conformance with this bakery
25 standards of 1947, the safety code for bakery

1248
Proceedings
1 equipment? And he said yes.
2 Now there was a bakery standard code
3 Section 6.1.1 which pertains to belts and
4 chains and pulleys and sprockets and clutches.
5 And according to Visser the blades were not
6 considered in that list.
7 6.1.2, Visser explained that the
8 drive elements included gears and sprockets and
9 other things on the outside of the machine, not
10 the blades. And with respect to 6.1.5, Visser
11 was cross-examined on this, but unfortunately
12 Mr. Durst did not get the answer he was looking
13 for. He could not get the witness to concede
14 that that part of the standard required an
15 interlock on the grate. He testified that it
16 did not require it. And he ultimately
17 testified that it was in compliance because it
18 had -- this other interlock was the automatic
19 shutoff.
20 Again, remember, as much detail as
21 those sections are gone into on Mr. Durst's
22 cross-examination, his expert on his case
23 didn't even mention that standard. If it was
24 so controlling and so important and violated at
25 the time of sale of this machine, why didn't

1249
Proceedings
1 his own expert bring it up first?
2 Finally, with respect to Section
3 6.1.9, you can read it, it's in evidence.
4 According to my expert, the enclosure that was
5 on this machine, the safety grate that was
6 removed by Ferrara, was one method by which
7 this machine complied with the standard. And
8 it also had the automatic shutoff which put it
9 in compliance.
10 Now, another very important question
11 you are going to have to determine is what
12 ultimately caused this accident? What was the
13 cause of the accident? And you will see words
14 such as substantial factor and the judge will
15 instruct you on the law. Now, based upon what
16 you have heard from witnesses from both sides
17 in this case, it could not be clearer what
18 caused this accident. Remember, in Visser's
19 words the safety features of the mixer involved
20 in this accident were cannibalized by the
21 employer, Ferrara Foods.
22 Look at the consistency with respect
23 to all the witnesses, Mr. Durst's witnesses,
24 the defendant's witnesses, whether they were
25 brought into this courtroom by way of

1250
Proceedings
1 transcript, video or in person. Let's look at
2 what each of the witnesses were able to tell
3 you about how this machine was substantially
4 altered and modified, how various safety
5 features were removed from this machine by who,
6 by third-party defendant Ferrara Foods. If you
7 find that safety features of this machine were
8 substantially modified or removed by Ferrara,
9 the judge will instruct you, you must find in
10 favor of National Equipment.
11 Now, let's look at the testimony on
12 the substantial modification, this
13 cannibalization of the machine. The plaintiff
14 himself confirms several things. The plaintiff
15 told that you he was barely trained by Ferrara
16 Foods; told you that the accident happened on
17 the second or third day on the job. He told
18 you that the mixer was broken for approximately
19 one month before the accident. And he told you
20 that the safety grate, which was on sometime
21 prior to the accident, he remembers during the
22 six months he was at Ferrara that it was on at
23 some time, had been removed and it was gone on
24 the day of the accident. And he also told
25 you -- what did he tell you, he told you that

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Proceedings
1 but for -- if it wasn't for the removal of that
2 safety grate, he wouldn't have been able to
3 stick his hands into those moving blades.
4 What did Arthur Greenberg tell you?
5 Arthur Greenberg told that you the machine was
6 in gross disrepair. He went to the factory,
7 Ferrara's factory. There were wires all over
8 the place. It looked as if someone came in the
9 middle of the night and played around with this
10 machine. The interlocks and other safety
11 features had been taken off. And he would have
12 thought that there were certain interlocks and
13 safety features that should have still been
14 there, but they were all gone at the time he
15 took a look at this machine.
16 Mr. Visser took a look at the machine
17 last in person. He told you that the machine
18 had been substantially, changed substantially
19 altered since its manufacture. And he said it
20 had been altered by the employer Ferrara Foods.
21 He testified that several safety features have
22 been removed and what were those safety
23 features? The safety grate which we have heard
24 a lot about. The safety switches, which I just
25 showed you Exhibits B and D and E. And again,

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Proceedings
1 ask for anything in evidence. Take your time
2 looking at it.
3 Mr. Visser told that you he saw
4 these, the mounts where the safety switches for
5 the automatic shutoff were. Ferrara removed
6 those as well. The safety grate, the safety
7 switches, they were both removed by Ferrara.
8 And what then, what did Miguel Rogel told you?
9 He also told that he also had a microswitch
10 disconnected that was clear from his videotape
11 deposition.
12 Let's talk about Miguel Rogel. In
13 evidence, you are going to have plenty of time
14 to take a look at this and look at your
15 leisure. Miguel Rogel, the video deposition
16 witness in his statement, he will tell you that
17 he did three, you know, three things to
18 substantially change the condition of this
19 machine while Ferrara had it. And what were
20 those these things?
21 I draw your attention to the
22 statement. Miguel Rogel states at the time of
23 the accident, the grate or the guard over the
24 hopper was not in place. We were afraid that
25 the grate, when raised up to get into the

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Proceedings
1 hopper, might slam shut on someone trying to
2 empty the hopper. What did he say? He said to
3 prevent employees from trying to use the tilt
4 motor feature of the machine, I had the switch
5 button disconnected, he had it removed.
6 And then finally Miguel Rogel also
7 admits in his statement, and he admitted to the
8 statement when he was questioned at his
9 deposition, that the arm for the tilting act of
10 the machine was loose and the problem had been
11 there for a few days. And we were waiting for
12 someone from Ferrara to come and repair the
13 machine. Remember, again, if you find that
14 this machine was substantially altered, the
15 removal of one or more key safety features by
16 the third-party defendant, you must find in
17 favor of my client, National Equipment and stop
18 there.
19 In closing, I'm going to ask you to
20 find three things. The mixer involved in the
21 accident was not sold by my client National
22 Equipment. Zero fault, no liability against
24 In the event that you find that it
25 was, I'm asking you to find that it was not

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Proceedings
1 defective at the time it left our hands, zero
2 percent fault against National Equipment. The
3 only defects in this machine were substantial
4 modifications which were incurred on this
5 machine by the employer, third-party defendant
6 Ferrara Foods and those were the cause, a
7 substantial factor in causing Mr. Rodriguez's
8 accident.
9 Again, the defects were the removal
10 of the safety grate, the removal of safety
11 equipment switches, the removal of a
12 microswitch all by Ferrara employees once
13 Ferrara had this machine.
14 And I also ask you to consider
15 Mr. Rodriguez's own negligence. Admittedly, he
16 did stick his hand into the moving blades of a
17 mixer when he hadn't done so on prior
18 occasions. He forgot to turn the machine off.
19 Thank you very much.
20 THE COURT: Thank you, Mrs. Cotter.
21 Ladies and gentlemen, your lunch has
22 arrived. As I indicated we are going to break
23 during your luncheon recess and some of your
24 lunches are hot lunches. And I'm going to ask
25 you all to retire -- well, you can do the

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Proceedings
1 following. Take your lunches into the jury
2 room and eat your lunches in the jury room.
3 You can take your lunches and go outside and
4 eat outside. Whatever you decide. But the
5 most important thing is you have yet to hear
6 one final summation and you have yet to hear
7 the Court's instructions to you on the law.
8 So there will be no discussion
9 whatsoever upon the information, the
10 summations, that you have heard must thus far.
11 Does everyone understand that? All right. So
12 again you are free to have your lunches in the
13 jury room or you may go outside, but I'm going
14 to ask that you be back in about one hour. You
15 still have one summation left. Plus you have
16 the Court's instruction to you on the law.
17 So please now more than ever do not
18 discuss the case among yourselves or with
19 anyone else. Do not allow anyone else to
20 discuss it with you or in your presence. If
21 anyone attempts to do so, please bring that to
22 my attention. Please don't speak to the
23 attorneys or parties or witnesses and please be
24 back here promptly at 2:10 everyone.
25 All right. Have a good lunch

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Proceedings
1 everyone.
3 THE COURT: I'm going to ask all
4 counsel to take this opportunity to use the
5 robing room for the purposes of making
6 redactions on the items that have yet to be
7 redacted, that includes Mr. Rogel's statement.
8 I believe there are medical records that are
9 being proffered; is that correct?
10 MS. SCOTTO: Yes.
11 THE COURT: Are the medical records
12 in evidence?
14 THE COURT: Then you need to redact
15 those as well.
16 Anything else?
17 MS. SCOTTO: I think that might be
18 it, Judge.
19 MS. COTTER: The medical records are
20 probably the only things that need redaction.
21 THE COURT: So that and Mr. Rogel's
22 statement so you will utilize the robing room
23 for that purpose since my court officer will be
24 remaining here during the luncheon recess.
25 However, please try to get through that as

1257
Proceedings
1 quickly as possible.
2 All right, we are in luncheon recess
3 until 2:10.
6 p.m.)
10 THE COURT: Okay, ladies and
11 gentlemen, have a seat. By the looks of the
12 smiles on your faces, I trust that lunch was
13 very, very good. Yes, no? You have got to let
14 me know because if it wasn't we will order from
15 someplace else next time.
16 It was good?
20 I'm going to stand here if it's okay because I
21 like to be by Cirro because this is a case
22 about him, not about me. And I don't want you
23 to forget that this is not my case, it's his
24 case.
25 And I only have 30 minutes to talk to

1258
Proceedings
1 you. And it's been a long case, but I'm going
2 to take some of that time to tell you one very
3 important thing. I told you when we started
4 this it's going to be worth your time. Serious
5 case involved a serious situation. It's been a
6 lot of time. I want you to know that I have at
7 times -- and you have been very patient with
8 the way things have proceeded. And I'm going
9 to tell you one thing. Any time I expressed
10 any impatience, I have apologize for that.
11 Because whenever I did that, it was through
12 impatience on my part. Because what was being
13 done here, was to make sure that what you
14 received in evidence was absolutely legally
15 acceptable.
16 And I want to thank the Court and I
17 want to thank the Court's clerk and I want to
18 thank the defendants' attorneys for doing such
19 a good job of making sure that what you
20 received is proper for you to see. Because in
21 the event something happens, we want to make
22 sure that nothing was done incorrectly at this
23 trial. So every minute we spent was worth it,
24 believe it or not, it was worth it. All the
25 side bars, all the conferences, all the legal

1259
Proceedings
1 issues had to be taken care of.
2 Your time is so valuable. It's been
3 nine years since this case started. And today
4 it gets to be finished. Do you realize how
5 happy I am? I wore my Easter finery. I bought
6 a new suit, new shoes because today is
7 resurrection day for Mr. Cirro Rodriguez. He
8 is nine years. You may remember when he
9 testified. The one thing that bothers him most
10 is when he meets somebody, he has to introduce
11 himself, stick out his hand, and every time he
12 does that, it reminds him that, you know, he's
13 got this handicap that every person he meets
14 wants to know about. And every person he meets
15 hears him say, my hand was caught in a machine
16 and they go, Oh, you idiot. You stuck your
17 hand in a machine that had moving blades? Just
18 like the defense counsel did.
19 And so every day he is reminded of
20 that. Today is the day you can lift that
21 shroud off of his head and you can say to him,
22 Mr. Rodriguez, we spent time on this case. We
23 know we heard all the details of this case, and
24 you know what? We understand that this
25 accident was not your fault. Very important

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Proceedings
1 day.
2 Now, I'm going to tell you, I'm going
3 to go through the details now, the evidence
4 that's going to permit you to do that. And I'm
5 going to do it with reference to questions that
6 you must answer. The judge is going to give
7 you a verdict sheet. You must check off
8 answers to certain questions on that verdict
9 sheet and I'm going to address each one of
10 those questions and I'm going to tell you what
11 the evidence shows that would support a finding
12 on that verdict sheet.
13 Now, the first question you are going
14 to have to answer is, Did National Equipment
15 Corporation distribute this dough mixer, this
16 particular dough mixer, at some point in time.
17 Not whether they sold it directly to Ferrara
18 you don't have to answer that question, you
19 have to answer was National Equipment
20 Corporation a seller of this machine before
21 this accident.
22 Now, we brought in Mrs. Tonnaer from
23 Holland for the all-expense vacation that the
24 defense counsel said. She came in one night,
25 stayed overnight, the next morning she came to

1261
Proceedings
1 this courtroom she testified and she flew out
2 that afternoon. I don't think she did that for
3 the vacation. I think she did it for the
4 reason she said she did it and that is because
5 it was the right thing, the good thing to do,
6 to tell the truth.
7 Now, the first question you are going
8 to have to answer was answered by Mrs. Tonnaer,
9 where she said -- well, I must tell you first
10 thing, the first person that answered the
11 question was Mr. Scoppa. Mr. Scoppa was the
12 vice-president of Ferrara and he testified at
13 his deposition when he was asked, Have you
14 spoken to anyone about who you purchased this
15 machine from. They said do you recall telling
16 them the machine was purchased from National
17 Equipment Company. He said, I believe yes.
18 Now, that would typically be kind of the end of
19 the story. But then he goes, at the time we
21 from National, so I just assumed that this is
22 one of the pieces that came.
23 But you know what caused him to be
24 not so certain, he said, but we can't find any
25 records. Then he is asked, Well, did you keep

1262
Proceedings
1 records going back that far? And he says, No,
2 we don't. Do you have a computer system going
3 back that far? We do now, but it wouldn't
4 cover 1978. We didn't have a computer back in
5 '78. So that's the only uncertainty in his
6 mind is we couldn't find any records.
7 So that would typically be enough,
8 right? But it wasn't enough. So Mrs. Tonnaer
9 came here and I thought she was pretty
10 unequivocal and I'm going to refresh your
11 recollection about some of the things she said.
12 I think you remember, so please forgive me if I
13 am repeating something that you already know.
14 But she said, and you could ask the Court to
15 read this back, but first, she said that, you
16 know, you have to remove the material by
17 rotating the blades, that's just the only way
18 to do it.
19 And she said that she had to learn
20 about what customers they could sell their
21 machines to. And she was told and shown all
22 the invoices and everything like that, that you
23 can use National Equipment Company because that
24 is our business partner in the United States,
25 other partners we don't have. It's all by

1263
Proceedings
2 Important for her to know her
3 customers, right. If there is more customers
4 out here to know about, she has got the same
5 kind of business she and her -- her husband
6 have the same business, selling the same
7 machines, they need to know their customers.
8 So she had every reason to know if there was
9 anybody but National Equipment.
10 Then she describes the machine. She
11 goes, the machine has to rotate, the arms have
12 to rotate the opposite position to push the
13 product out. She says, I hope I make myself
14 clear. It had to rotate. Otherwise you would
15 have to have arms like this, she said. Do you
16 remember that? Arms like this to remove the
17 dough without the blades pushing it out.
18 You got to have the blades push it
19 out. Then she said, When we made those, when
20 those machines were made they didn't have
21 safeties. She goes, I have to repeat it, but
22 there were no safety, there was no safety in
23 those years in our country. She said by the
24 way, she said, there is lots of mixers, lots of
25 invoices of blade mixers and other kind of

1264
Proceedings
1 machines to National Equipment. She saw them
2 herself. She said she could say this specific
3 machine was sold by Tonnaer Company and when it
4 was in the United States, it would be sold by
5 the National Equipment Corporation.
6 All -- then she goes, But all the
7 machines went through National Equipment. So I
8 asked if she asked her father about it. Now
9 look, we all make mistakes. She was asked if
10 she asked her father about this machine. She
11 goes, well, my father as we said has been dead
12 for eight years and we all had that kind of a
13 snicker. But look, we all make mistakes, the
14 difference here is when somebody here makes a
15 mistake or when I make a mistake there is what
16 you call forgiveness. You have a chance to
17 reclaim yourself, to redeem yourself. But the
18 plaintiff, when he made a little mistake, there
19 was no chance to redeem yourself. You lose
20 your fingers.
21 That's what safety guards are all
22 about in the machine industry. Attorney makes
23 a mistake, he erases it or he says, excuse me,
24 your Honor I made a mistake. He makes a
25 mistake, he loses his fingers. That's why you

1265
Proceedings
1 have safety guards. That's why they have to be
2 there. But anyway just to show that we all
3 make mistakes.
4 Now, I think her testimony was about
5 as unequivocal as possible that this machine
6 had no safety guards on the machine when it was
7 sold. But just to reinforce that for you, I
8 will go back to Mr. Scoppa. Do you know -- and
9 he was electrical -- he had studied electrical
10 engineering. You all remember that at the
11 deposition. Do you know if the machine when it
12 arrived had any electrical circuits to turn off
13 the cover, when it was lifted? He goes, no, it
14 did not. You have some familiarity with
15 electrical design? Yes, I do. All right.
16 He says, there are no electrical
17 devices hooked up with this rod that holds the
18 gate in place, he says, none whatsoever. So he
19 testified that this machine never had any
20 electrical stuff that would stop it if you open
21 the cover. Very, very, very, very important.
22 You have got to remind yourself that. Because
23 when this machine left the possession of
24 National Equipment Corporation, it never had
25 this electrical interlock that you could turn

1266
Proceedings
1 off the machine when you open the cover.
2 Now, Mr. Greenberg, he testified
3 contrary to -- first he got up and said he
4 remembered every machine he remembered. Never
5 seen that machine and all that stuff. Then he
6 testified, well, actually he wasn't even
7 working in sales back in 1950s through -- up to
8 1970s. He didn't work in sales so he wouldn't
9 have seen the machines at all at that time.
10 Then he testified that he didn't remember every
11 machine, he didn't remember me from my partner
12 who he had seen a few years before. Then he
13 didn't remember which machines were sold to who
14 after looking at the cards.
15 You know, for him to suggest that he
16 remembered every machine that was sold, it was
17 just implausible. Then, he testified, well,
18 you know, he agreed that back in 1998 when he
19 was deposed he said he had no personal
20 knowledge of whether they ever had possession
21 of the machine. He said I don't, I don't know,
22 he says. Is there anything that would lead you
23 to an opinion that your company did not sell
24 that machine to Ferrara Company? And I don't
25 have any opinion. I haven't been able to find

1267
Proceedings
1 any paperwork on it. Then he is asked, so he
2 really didn't have an opinion, he is just
3 saying no record.
4 Then they asked how long do you keep
5 paperwork and he says, we probably have
6 information that goes back 20, 25 years,
7 meaning from 1998 to about 1978, 1975. He had
8 some paperwork going back that far, right, but
9 no further. This machine was probably sold in
10 1950s. And Mrs. Tonnaer said it was sold to
11 National Equipment, the only place they ever
12 sold it to.
13 He doesn't say they didn't sell it,
14 he just said they have no paperwork and they
15 didn't keep paperwork going back that far. And
16 he said that they would not necessarily put
17 guards on the machine, they would just sell
18 them. It was only if they reconditioned a used
19 machine that they would actually put a guard on
20 there. He said many, many of the machines were
21 sold not reconditioned, not with a guard.
22 And I know that this is a lot to
23 remember, but you got to strain yourself.
24 There is seven of you. Use your joint
25 recollection. Ask for a read back if you need

1268
Proceedings
1 to know this stuff, because it's factual stuff
2 that's very important. That they would sell
3 these new machines without putting any guards
4 and they would sell the old machines that they
5 didn't recondition without putting any guards
6 on them. They would just sell them. It was
7 only -- it was only if you paid them to
8 recondition that they put a guard on.
9 He testified that National Equipment
10 doesn't put any type of labeling on the
11 machine. But what basically this is, is
12 National Equipment gets the machine and they
13 sell it to someone else, they are a
14 distributor. Now, they could just slap a
15 label, distributed by National Equipment, a lot
16 of people do that. They don't do that so it's
17 not like they would have had a label. He said
18 they never do that. I'm not sure why, but they
19 don't.
20 So you have Mrs. Tonnaer being very
21 certain, Mr. Greenberg being totally equivocal.
22 Then you have him produce six records and they
23 are in evidence and you can take a look at
24 them. These six records don't reflect one sale
25 between National Equipment Corporation and

1269
Proceedings
1 Tonnaer. So they had all these sales and he
2 acknowledged he went to the plant, they had all
3 these sales, but he has not one record of it.
4 And it turns out, and I didn't discover it
5 until the end and I was flabbergasted, I got
6 angry. He said that he only produced records
7 that had to do with used equipment. He said he
8 didn't even look at records having to do with
9 the new equipment.
10 Now, he admitted they had this
11 business relationship with Tonnaer that they
12 were, in fact, selling Tonnaer machines. But
13 he didn't produce one record of a sale where
14 they purchased something from Tonnaer and then
15 sold it to someone else. So I think you picked
16 up on that, but I was so angry that I actually
17 sat down in anger rather than pursuing it and I
18 apologize for that, but I thought you picked up
19 on it.
20 They did not have records of the new
21 machines. So his testimony was basically
22 worthless. They didn't even look to see if
23 they had any records of sales of this machine
24 new. He chose to do that for one reason, to
25 try to avoid responsibility for selling this

1270
Proceedings
1 machine.
2 Now, another thing you are going to
3 have to consider is whether -- and this is
4 very -- so the first question is whether they
5 were a distributor and you have to answer that
6 question. If you don't answer it yes, you are
7 sending Mr. Rodriguez home with nothing.
8 Now, your heart is going to make your
9 decision for you. Your head is -- I'm giving
10 you information for. I'm giving you
11 information that will satisfy your mind. The
12 evidence is there. You will make this
13 decision, it's all up to you. You are the --
14 you are filling a almost a divine role, all
15 right, of passing judgment on something that's
16 going to really make a huge effect.
17 The evidence is there. I'm just
18 pointing it out to you so that you can make
19 your decision. They are going to ask you, was
20 the failure to have -- was the machine
21 defective? Now, the machine was defective
22 because it didn't have the interlocked guard.
23 Now, Mr. Visser -- Dr. Paul testified that,
24 yeah, you got standards from 1929, you got
25 standards from 1949. All require that all

1271
Proceedings
1 covers be interlocked so if you opened, the
2 machine shuts down. You can't get around that.
3 Why? Because you got history of
4 throughout the industrial age people getting
5 injured by these machines because employers
6 make them do things that they shouldn't do,
7 such as working on a machine that has a guard
8 down, forced to do it. It's been going on for
9 centuries and that's why you come up with these
10 laws is to prevent employers from being able to
11 do that.
12 Here Dr. Paul testifies about these
13 standards. Then Mr. Visser gets up and he
14 says, well -- oh, by the way Terrence Saachi,
15 remember his testimony? He was the guy that
16 read the testimony. All he talked about was
17 what they did when they reconditioned the
18 machines, nothing to do with the used machines
19 that were not reconditioned or any new
20 machines. So his testimony was -- it didn't
21 really fly at all.
22 So then you got Mr. Visser who
23 testifies. Nice enough fellow but he really
24 first he didn't -- hadn't looked at any of the
25 standards. Then he came back and said -- yes,

1272
Proceedings
1 I did look at the standard and he brought forth
2 the bakery code, which is a very important
3 standard. I was very happy he produced that
4 for us because that standard requires, and you
5 have it here in evidence, requires that all
6 covers be interlocked. I'm going to show it to
7 you, okay. And I want you to read it.
8 I want you to read this, okay,
9 because you are going to have this.
10 Every mixer --
11 THE COURT: Mr. Durst, if you are
12 going to read, don't do that. You are wasting
13 time. Let's go.
14 MR. DURST: I'm so sorry.
15 "Every mixer," this is a mixer,
16 right, "shall be equipped with a full enclosure
17 over the bowl which is closed at all times
18 while the agitator," that is the blades, "is in
19 motion. Only minor openings in this enclosure
20 such as ingredient doors," they have a little
21 door to add flour, "each representing less than
22 one and a half square feet in area, shall be
23 capable of being opened while the mixer is in
24 operation."
25 This was passed by the Bakery Society

1273
Proceedings
1 in 1947 and it applied to everybody. So this
2 machine was not in compliance with that
3 standard, not in compliance with the '49
4 standard, the '29 standard. We are talking way
5 back. Why? Because there is a lot of history
6 of these kind of injuries. And the witness
7 first -- and he is the one produced that for
8 us. And then he testified and it was a very
9 last -- after this I said, sir, bakery
10 standards, it requires, doesn't it, that when
11 you are mixing, when the agitators are moving
12 to mix the ingredients, the bowl be completely
13 enclosed at all times when mixing and that you
14 are only able to open to a certain size where
15 you add the ingredients, a certain size. He
16 goes 6.19, he goes, only minor openings are
17 permitted. So that standard requires that it
18 be fully enclosed. Okay. And he goes, yes.
19 And that if any opening greater than that is
20 made by say lifting the cover, the blades
21 automatically stop, right? Yes.
22 That's when I sat down because I
23 realized he had given us the standard, which it
24 was incontrovertible. All right, clearly this
25 machine did not have such a cover. It was

1274
Proceedings
1 required to. And if it didn't comply with
2 that, what this witness said, well, they are
3 all so confusing, so many standards, you don't
4 know which one applies. Well, fact is, is the
5 bakery code we know applied to the dough mixer,
6 was specifically passed with the dough mixing
7 machines. He just wanted to avoid it.
8 Now, what happened if you don't
9 comply with the standard? Well, that may not
10 be a law but that means your machine is
11 substandard. It doesn't meet the basic
12 standard for a machine. That means it is
13 defective. So when you come to the next
14 question, you are going to be asked was the
15 dough mixer defective, you must answer yes, it
16 was defective.
17 Now, did it exist when the dough
18 mixer left the possession of National
19 Equipment? The answer to that is clearly yes.
20 When the dough mixer was sold, it did not,
21 Mrs. Tonnaer testified, it did not have these
22 safety gates they sent them. They did not have
23 these interlock safety gates. Then she looked
24 at this machine. She said, look, you can see
25 there is no electrical equipment that was ever

1275
Proceedings
1 there to stop this if you open that safety
2 gate.
3 Then Mr. Scoppa testified that there
4 was never -- he is electrical guy, never had
5 electrical stuff on there to stop the machine
6 if you opened it. So you've got all these
7 people saying it was never there. We made it,
8 people used it and everybody in between. Did
9 the defect exist when it left the hands? Yes,
10 it did.
11 Was it a substantial -- next
12 question, was it a substantial factor in
13 causing the plaintiff's injury? Now, we know
14 that if it had been on, you couldn't have
15 lifted the cover to do what he was doing. His
16 boss couldn't have told him, go do that,
17 because it wouldn't be physically possible.
18 That's why you have that thing on there.
19 Was it a substantial factor? If you
20 didn't have it on, was it a substantial factor?
21 Of course, it was a huge factor. If it was the
22 factor -- if you had it on, the accident
23 couldn't have happened. So that answer has to
24 be yes. Now, then you make -- you get a
25 question about whether the machine was

1276
Proceedings
1 substantially altered. Now, substantially
2 altered a key safety device, was it
3 substantially altered.
4 Well, we know the gate was taken off.
5 But the gate couldn't have been taken off if it
6 was interlocked. It's impossible. They never
7 remove -- nobody ever removed the electrical
8 equipment. They all testified -- no testimony
9 to that effect. So you must answer that the
10 key safety feature, that is the interlock that
11 would turn off the blades as soon as you open
12 the blades, was never altered.
13 Okay, not substantially altered. If
14 you say that this machine was substantially
15 altered, the plaintiff has no case. You are
16 sending him home with nothing. You must be
17 very careful on that question. Don't be
18 confused. It was a key safety feature, that is
19 the key safety feature which is involved in the
20 case, that's the interlock which turns it off
21 when you lift the cover. Was that removed?
22 No, Ferrara never removed that. They testified
23 to that. There is no testimony anybody ever
24 removed that. So you must answer no to that,
25 otherwise the case is over.

1277
Proceedings
1 Now, next question to be asked is was
2 the injury caused by the plaintiff's misuse.
3 Well, he was told to do what he was using. So
4 he wasn't misusing, he was doing exactly what
5 he was supposed to be doing. He is a kid, a
6 boy who is told to do stuff and he does it.
7 That's it. Could be anybody's kid, just told
8 to do stuff and he does it. Could he have
9 discovered the defect and realized its danger?
10 He knew nothing about a defect. He knew
11 nothing about the cover should be interlocked.
12 He didn't know anything about the defect in the
13 case. He is a just doing what he is told.
14 Could he have avoided injury by
15 reasonable care? Now, this is a question that
16 you have to consider. Now, he was working on
17 the machine in a situation that both
18 Mr. Visser, Mrs. Tonnaer, Mr. Greenberg -- by
19 the way, Mr. Greenberg acknowledged that
20 failure to interlock that guard would render
21 the machine defective and that any expert who
22 said it didn't would be wrong. And could he
23 have avoided the injury? Well, look, he is
24 doing this over and over and over again. The
25 blades are turning, grabbing the dough and

1278
Proceedings
1 pulling it back down. Dr. Paul explained you
2 have the dough, the dough gets dragged back in
3 by the blade and it pulls your hand in. You
4 don't stick your hand in, it pulls it in while
5 you are holding it. Its power is pulling it
6 back down there. Now, he shouldn't have ever
7 been required to work on this machine in that
8 condition. All right.
9 So I say to you that the
10 responsibility when you are allocating should
11 be nothing for the plaintiff. Now, what is the
12 percentage of responsibility? I think you
13 should have National Equipment responsible at
14 least 25 percent. You may feel they should be
15 more responsible, I wouldn't disagree with you.
16 But at least 25 percent. If they are zero
17 percent responsible, the plaintiff gets
18 nothing. Do you understand that? If National
19 Equipment is not responsible, he gets nothing
20 for this. Then whether -- then you have to
21 allocate the rest of 100 percent. I suggest
22 25 percent should be allocated to National
23 Equipment, 75 percent to Ferrara Foods and zero
24 to the plaintiff.
25 I want you to tell this plaintiff

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Proceedings
1 that he doesn't have to feel guilty, he doesn't
2 have to feel humiliated, he doesn't have to be
3 embarrassed every time he meets somebody and
4 they say what happened. He could say this jury
5 said it was not my fault. And he can say to
6 himself, it was not my fault. That would
7 decrease his suffering.
8 Now the damages part. This is
9 important. How much money should he get?
10 Okay. Past pain and suffering. Now, it's been
11 nine years, okay, we are talking about from now
12 past. How much do you charge for the pain and
13 suffering of having all these fingers removed,
14 okay? And it's a tough question. And it's
15 very difficult for me to come up with an
16 answer. I think that $100,000 a year is not
17 inappropriate. I'm saying to you that for the
18 past pain and suffering, having ripped off --
19 and surgery and every time he meets somebody
20 reminded, man, your life is screwed. He is
21 just depressed.
22 You heard the doctors. Remember the
23 good doctor got up here and testified as to how
24 depressed this man was, he didn't feel like
25 going outside anymore. He felt worthless. You

1280
Proceedings
1 see the way he is. He is sad, man. I say give
2 him a million dollars for the past. I think if
3 you were going to take the job of having your
4 hand removed, you would not charge less.
5 Now, medical expense, they have been
6 filled in. Lost earnings. Now, he was earning
7 four and a quarter at the time of the accident.
8 But of course his testimony is that he was
9 working two jobs before that. You know, this
10 was a more steady job where he was hoping to
11 advance. So if you are talking about four and
12 a quarter and you do the multiplication comes
13 to approximately $17,800 per year that he was
14 losing. So you multiply that by the nine years
15 and you have got past lost wages. But the fact
16 is he would have been earning more because he
17 was a young kid at the time. A lot of young
18 kids don't even work. He is a clean living,
19 everybody's ideal son kid and he was trying to
20 advance.
21 Now, I think you are free to find
22 that he would have been earning more than that
23 minimum wage. Minimum wage has even gone up.
24 So you have got to consider that that
25 approximately $80,000 in past wages for the

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Proceedings
1 past nine years wasn't really there, more like
2 eight dollars an hour.
5 Ladies and gentlemen to the extent
6 that there is no evidence before you from an
7 expert, economist, you can just base it on the
8 information with regard to past earnings. All
9 right, ladies and gentlemen.
10 MR. DURST: Well, I'm asking you to
11 take into consideration everything you have
12 heard.
13 Now, let's turn to the future. Okay.
14 The future, the man is 28 years old. He is
15 going to live to be 75, 78 you know, you have
16 to decide that. How long do people live
17 nowadays, 90, 75? He is a clean-living kid.
18 He is going to live a long time. How long is
19 he going to work? He is going to work a long
20 time. He is a clean liver.
21 So when you have to figure future
22 pain and suffering, how much are you going to
23 calculate? It's a tough one, isn't it? And
24 what way do we have of evaluating? I have
25 often been asked that and it's very difficult

1282
Proceedings
1 to evaluate pain and suffering. You know,
2 every second that he has to live, he has to
3 deal with this. Every person he meets for the
4 rest of his life, he is going to have to deal
5 with this. Every woman he tries to meet he is
6 going to have to deal. Every time he wants to
7 play sports, every time he wants to play
8 guitar. Every time he wants to do anything.
9 Every time he wants to open a thing of jelly or
10 a jar, he has to deal with this. We are
11 talking for the rest his life.
12 Now, how do you account for that? I
13 ask you to award him $4 million for the rest
14 his life for future pain and suffering. Not
15 talking about the past, I'm talking about what
16 he is going to suffer for the rest of his life.
17 I think that's cheap. I think that's really
18 cheap. I think you could be more generous and
19 I wish you would and I am not going to ask you
20 to because I don't want to sound greedy, but
21 frankly would you do it for $4 million? I
22 think not. I know I wouldn't.
23 Now, medical expenses, Dr. Nunez
24 testified that he could give him a claw, a
25 lobster claw if you put $250,000 into it and

1283
Proceedings
1 then gave him more money for rehabilitation. I
2 think he should be given that amount of money.
3 I think he should be given future medical
4 expenses. Maybe they'll come up with something
5 that he can pay for that will help him, like an
6 operation. Give him that chance. Give him
7 that money to afford that.
8 Future impairment of earnings. Now,
9 future impairment, do you know how much that
10 is, what that's referring to? That's how much
11 he would have earned, not the $4.25, but you
12 heard the doctor --
14 MR. DURST: There was testimony.
15 THE COURT: Sustained as to anything
16 dealing with an economist's analysis.
17 MR. DURST: No, no, no. I'm not
18 going to suggest a -- nobody suggested a
19 figure. But what I would like to do is refer
20 to what Dr. Griffith testified what, in his
21 estimation, he would have been able to do if
22 this accident had not occurred and let them put
23 a figure on how much that might be.

1284
Proceedings
1 THE COURT: The objection is
2 sustained as I just ruled, so continue from
3 there.
4 MR. DURST: He could have done a lot
5 of things, all right, truck driving, baker,
6 lots of thing. Now, what is he relegated to
7 doing? Well 4.25 an hour, do you think in the
8 year 2050 he would have been making 4.25 an
9 hour?
11 THE COURT: Ladies and gentlemen, you
12 are not to speculate, all right? Thank you.
13 MR. DURST: So I think you should
14 award him a fair amount of money for the loss
15 of future earning ability. That's what he
16 could have earned. You know, this kid was
17 ambitious, he was trying to do stuff. He was
18 trying to do the right thing. He came up here,
19 took courses. He worked two jobs and he was
20 doing -- taking on the hard job at Ferrara that
21 nobody wanted.
22 All of a sudden, the family -- he
23 didn't really come up here to be a news vendor
24 or a crossing guard. He came up here to get a
25 real job and to make a real living. The

1285
Proceedings
1 witness that they brought, Dr. Pascuiti, nice
2 guy, testified that Mr. Rodriguez can drive a
3 taxi or a truck or forklift. Look, you can't
4 drive a taxi with one hand, you need two hands
5 to drive, you know. It wouldn't be safe. And
6 plus he doesn't even have a driver's license.
7 It's ridiculous to expect him to get a job
8 driving, shifting this way and driving and
9 shifting. I just don't think that's reasonable
10 to expect him to be able to do that.
11 THE COURT: I know that the court
12 reporter is struggling to hear you. Please
13 keep your voice raised and don't drop it at the
14 end of the sentence.
15 MR. DURST: Yes, your Honor. I'm
16 sorry.
17 I just don't see how he could have
18 been a salesperson. You know, when you are a
19 salesperson you kind of have problems if you
20 don't look right. You know, they kind of look,
21 he's got a cosmetic deformity which can gross
22 people out. I think that might have been a
23 problem, you know. Plus you have to be kind of
24 talkative. You can't be depressed. You have
25 to be pushy. He's not that kind of character.

1286
Proceedings
1 He is understated, not a salesman type. A most
2 active sales writer, maybe you can write up
3 things with your left hand, but you have got to
4 be pretty lucky to get that job.
5 The job watching TV monitors, you
6 have to be really lucky to get that job. I
7 don't think you should give him the benefit of
8 that saying, oh, yes, he will get that job. I
9 don't think he will. I know you don't think he
10 really will. So I'm asking you to award him a
11 fair amount of money for future earning ability
12 and I'm going to suggest that you do that over
13 the period of the next 30 years, that you give
14 him money per year for the rest of his life for
15 what he would have earned. All right.
16 I thank you so much for your
17 attention and I hope I never did anything to
18 offend you. I tried to keep the focus on
19 Mr. Rodriguez. He is what the case is about.
20 Tell this boy that he can live the rest of his
21 life without the shroud of this horrible
22 accident on him.
23 THE COURT: Thank you, Mr. Durst.
24 Ladies and gentlemen, we are going to
25 take a quick five minutes and then we will be

1287
Proceedings
1 back. Please don't discuss the case amongst
2 yourselves or with anyone else. Don't allow
3 anyone to discuss it in your presence. Please
4 don't speak to other parties, attorneys or
5 witnesses.
7 Tell you what, make it ten minutes. All right,
8 ten quick minutes.
14 gentlemen, have a seat. I know I suggested
15 that we would be done with summations and
16 charge too, but let me just explain my charge
17 to you will take a minimum of one hour. So
18 rather than begin the charge and not be
19 concluded until 4:30 and then have you break
20 and come back tomorrow morning, what I will do,
21 because I know me, I have a very short
22 attention span these days, it may be due to my
23 early case of Alzheimer's or senility or
24 whatever it may be or too much work not enough
25 sleep, a whole combination of all of the above.

1288
Proceedings
1 I am not going to over burden you,
2 ladies and gentlemen with my charge to you on
3 the law and then have you come back tomorrow.
4 What I prefer to do is have the charge first
5 thing in the morning so the law is fresh in
6 your minds. As I indicated, the attorneys'
7 summation is not evidence. So that you will
8 have the charge fresh in your mind before you
9 begin your deliberations. And with regard to
10 tomorrow, just what we said with regard to
11 today, in the event that you are not concluded
12 with your deliberations by a quarter to five,
13 4:30, quarter to five, I realize tomorrow is
14 Friday. I don't want anyone feeling that they
15 must return a verdict and therefore they must
16 speed through their deliberative process.
17 You, ladies and gentlemen, as I said
18 are the judges of the facts. Just as the Court
19 and counsel took time with regard to the legal
20 issues, if you need to take time with regard to
21 factual issues, that is your domain. You take
22 whatever amount of time you feel you require in
23 order to evaluate this matter and reach a
24 verdict.
25 So if you feel that you are not going

1289
Proceedings
1 to be able to conclude by a quarter to five
2 tomorrow, you will come back on Monday. Now,
3 as I explained, ordinarily Monday mornings is
4 my calendar day. The only exception I make to
5 that is when I have a jury deliberating. So
6 you, if you continue your deliberation beyond
7 tomorrow, will be returning Monday morning at
8 10 o'clock and you will be in the jury room
9 behind closed doors. I will be here and in the
10 back dealing with my other regularly scheduled
11 legal matters.
12 If I need to break to attend to you
13 and any questions you may have or your having
14 concluded and reached a verdict, that is what I
15 will do. All right, everyone? So that's in
16 the off chance that you do not reach a verdict
17 tomorrow by a quarter to five. And in the
18 words of Pina Ippolito, I don't usually get wet
19 before it rains, but I'm just speaking out loud
20 in the event that that happens, so that's what
21 you have in mind.
22 So again, thank you all so very much.
23 I apologize that I could not give it to you
24 this afternoon as I had anticipated and wished.
25 But hopefully, tomorrow the case will be

1290
Proceedings
1 concluded, if not Monday at the earliest,
2 whatever your desire is.
3 Okay, ladies and gentlemen, again I
4 apologize, but please have a very safe evening.
5 The Yankee game is I think just letting out so
6 that, you know, in terms of your driving or
7 getting home from here.
8 Please do not discuss the case
9 amongst yourselves. I know there may be a
10 tremendous temptation. Please do not discuss
11 the case amongst yourselves. Now more than
12 ever do not discuss it with anyone else because
13 there may be a temptation to that as well. And
14 I don't want any of you getting any unsolicited
15 advice from anyone who is not connected to this
16 case as a juror. And especially yourselves,
17 you may not discuss it, so no one else. Please
18 don't allow anyone else to discuss it in your
19 presence or with you.
20 And of course you will remember to
21 bring to my immediate attention if they do.
22 Don't speak to parties, attorneys or witnesses.
23 Don't go to the area in question. And you have
24 a wonderful time this evening come back
25 tomorrow everybody safe and sound.

1291
Proceedings
1 So have a good night. Again, my
2 sincere apologies to you, ladies and gentlemen.
3 Have a good one.
4 JUROR: What time?
5 THE COURT: 9:45, how does that sound
6 to you?
7 JUROR: 10 o'clock?
8 THE COURT: All right, I will tell
9 you what I will do, ladies and gentlemen.
10 10 o'clock is fine if everyone promises to be
11 here on time. How is that? Okay. 10 a.m,
12 okay?
14 THE COURT: If there are any
15 questions you will direct them to Officer
16 Guzman.
17 THE COURT OFFICER: Jury, please.
19 THE COURT: Now that the jurors have
20 left, why don't we take this opportunity to
21 place -- we never -- none of you ever rested,
22 so let's do that nunc pro tunc, because I have
23 asked all of you to hold off for the purpose of
24 expediting this.
25 MR. DURST: Plaintiff rests, your

1292
Proceedings
1 Honor.
2 MS. COTTER: Your Honor, at the end
3 of the plaintiff's case I have a motion for a
4 directed verdict to make. Would the Court like
5 to hear that now?
6 THE COURT: Yes.
7 MS. COTTER: Your Honor, at this
8 point in the case plaintiff has rested and
9 defendant National Equipment moves for a
10 directed verdict in favor of National Equipment
11 on the following grounds:
12 The first ground is that there is
13 insufficient evidence now that all the
14 testimony in the case has been heard that
15 National Equipment sold or distributed the
16 dough mixing machine involved in plaintiff's
17 accident.
18 On the liability portion of this
19 case, plaintiff's counsel has offered the
20 testimony of the following witnesses.
21 Plaintiff Cirro Rodriguez, third-party
22 defendant's former vice-president Edward
23 Scoppa, non-party witness Margo Tonnaer Peters.
24 Now that these witnesses -- just for
25 the record -- and also the testimony of Miguel

1293
Proceedings
1 Rogel, although that was technically my case.
2 Now that these witnesses have been heard from,
3 it is clear that there is insufficient evidence
4 before the Court that my client, National
5 Equipment Corporation, sold or distributed the
6 mixer involved in the accident.
7 Plaintiff testified that he had no
8 idea where his employer, Ferrara Foods,
9 received the dough mixing machine involved in
10 the accident. Miguel Rogel had no idea where
11 the mixer came from. Plaintiff read the
12 testimony of Edward Scoppa, a former employee
13 of Ferrara foods. And that testimony was that
14 he was not a hundred percent sure where Ferrara
15 got the subject dough mixing machine.
16 He referred to a point in Edward
17 Scoppa's testimony where Edward Scoppa simply
18 stated, yes, he was asked at one point if he
19 got the machine at National Equipment, but when
20 he went and checked his records, he had no
21 evidence that the machine was, in fact,
22 purchased from National Equipment Corporation
23 by Ferrara.
24 Margo Tonnaer Peters was also heard
25 from during this trial. Her testimony which

1294
Proceedings
1 was objected to vehemently by both defendants
2 was purely speculative and based upon hearsay.
3 She testified during direct examination and on
4 cross-examination that her testimony was based
5 upon conversations with her father-in-law who
6 had passed away almost 15 years prior to the
7 trial, conversations with her husband and
8 conversations with her brother-in-law. She had
9 no personal knowledge of the business
10 relationship between National Equipment and her
11 father-in-law's company, Machinefabriek
12 Tonnaer.
13 She did testify however that the
14 subject machine was manufactured and sold
15 initially in the late 1950s. In addition to
16 those witnesses on the issue of whether
17 National Equipment sold or distributed the
18 subject dough mixer, plaintiff produced not one
19 piece of paper, no documents linking National
20 Equipment to the dough mixer involved in the
21 accident. For that reason alone the Court
22 should immediately direct a verdict in favor of
24 There is a second issue. Even if the
25 Court does not find that a directed verdict is

1295
Proceedings
1 warranted on that issue as to sale and
2 distribution of the subject dough mixer by
3 National Equipment, the issue of substantial
4 modification in this matter could not be
5 clearer. As the Court is well aware, it is
6 well settled in New York that alterations by a
7 third-party of key safety features in a machine
8 will absolve a manufacturer or distributor of
9 liability in a strict products liability case
10 of this sort. I cite Robinson versus Reid
11 Prentis Division of Package Machinery, 49 NY2d
12 471, 426 NYS 2d 17. Also Darsan v Guncalito
13 Corporation 153 AD2d 868, 545 NYS 2d 594.
14 Lapagalia versus Sears Robuck 143 AD2d 173, 531
15 NYS 2d 623. Garcia versus Biro Manufacturing,
16 475 NYS 2d 863.
17 And Garcia the Court held that a
18 particular alteration is immaterial to the
19 overriding fact that the machine had been
20 altered by a third-party. So that the safety
21 guard was admittedly not in its proper position
22 at the time of the accident.
23 I also refer to the case of Cacciola
24 versus Selico Bakers 127F SUP 2d. That case
25 held that where there is a modification which

1296
Proceedings
1 substantially alters the product and is the
2 proximate cause of plaintiff's injury the
3 manufacturer and/or distributors will be
4 absolved from liability.
5 Now, in this matter, the testimony of
6 virtually all witnesses on both the side of the
7 plaintiff and side of the defense have
8 testified consistently that the subject dough
9 mixer was modified once it was in the
10 possession of Ferrara Foods.
11 Plaintiff testified that the machine
12 was broken for approximately one month before
13 the accident. He also testified that at one
14 time during the six months he was working at
15 Ferrara that a safety grate was on the machine
16 and was removed some time prior to the
17 accident. Both experts testified that the
18 safety grate had been removed. And my expert,
19 Mr. Visser, testified that in addition to the
20 safety grate, safety switches had been removed
21 which controlled an automatic shutoff of the
22 machine which would have stopped the blades
23 from moving once the safety grate was lifted or
24 removed.
25 Additionally, Miguel Rogel whose

1297
Proceedings
1 testimony was heard by videotape during this
2 trial, was plaintiff's supervisor and he
3 testified that he was at the factory at the
4 time of the accident. A statement from Miguel
5 Rogel is also in evidence, Defendant's Exhibit
6 F at this trial, and Miguel Rogel admitted at
7 his deposition which was heard during this
8 trial and in his statement, that Ferrara did
9 three substantial alterations to this machine.
10 The first one was Ferrara employees removed the
11 safety grate which covers the mixer's blade and
12 prevented employees from putting their hands
13 into the -- strike that -- which prevented
14 employees from putting their hand into the
15 moving blades. And Rogel himself had the
16 microswitches which controlled the tilting
17 mechanism disconnected prior to the accident.
18 Additionally, the tilting mechanism
19 was broken and they were waiting for Ferrara
20 repair people to come and repair the machine.
21 It is clear from plaintiff's testimony as well
22 as the testimony of our witnesses in the case
23 that but for the removal of the safety grate,
24 plaintiff would not have been able to stick his
25 hand into the moving blades of the machine.

1298
Proceedings
1 Therefore, the removal of one or more of these
2 key safety features led to plaintiff's
3 accident. Therefore, that removal or
4 substantial alteration was the proximate cause
5 of the accident as a matter of law under
6 Robinson and the other cases I have cited.
7 Plaintiff cannot make out a case
8 under strict liability or negligence against my
9 client as a seller or distributor of the
10 product. Just for the record, your Honor, I'm
11 going to hand you a copy of my memorandum of
12 law in support of my motion for a directed
13 verdict and on the issue of whether National
14 Equipment sold or distributed this dough mixer.
15 I would point out that the case law
16 is also clear and I would like to cite some
17 cases for the record that liability may not be
18 imposed for breach of warranty or strict
19 liability upon a party that is outside the
20 manufacturing, selling or distributive chain.
21 And as I stated earlier in the
22 beginning of my argument, there is hardly any
23 evidence, no direct link at all linking my
24 client, National Equipment, with the actual
25 dough mixer involved in the accident. And I

1299
Proceedings
1 cite Smith versus City of New York 132 AD2d
2 818, 520 NYS 2d 195. There the first
3 department -- I'm sorry, strike that. Also the
4 First Department has specifically held that
5 proof of nonmanufacture is at least prima facie
6 sufficient to support an application for a
7 dismissal.
8 THE COURT: Proof of what was that?
9 MS. COTTER: Prove of nonmanufacture
10 is at least prima facie sufficient to support
11 an application for dismissal.
12 And I cite Smith versus Johnson
13 Products, 95 AD2d 675, 463 NYS 2d 464. And I
14 also site Watford versus Jack LaLanne Long
15 Island 151 AD2d 742, 542 NYS 765.
16 And finally, your Honor, I point out
17 that with respect to the distribution of this
18 machine and the lack of evidence that my client
19 National Equipment ever had possession of it to
20 distribute it, in Healey versus Firestone Tire
21 87 NY2d 596, 640 NYS 2d 860, the Court of
22 Appeals specifically held that the evidence
23 must establish that it is reasonably probable,
24 not merely possible or evenly balanced, that
25 the defendant was the source of the offending

1300
Proceedings
1 product.
2 For all of those reasons I would ask
3 again that the Court immediately direct a
4 verdict in favor of my client, National
5 Equipment and against the plaintiff dismissing
6 this case.
7 MS. SCOTTO: May I be heard?
8 THE COURT: Yes.
9 MS. SCOTTO: Your Honor, I join in
10 Ms. Cotter's applications for the reason that
11 she stated, but I would like to add this.
12 There should be a directed verdict against the
13 plaintiff for the reason that the condition of
14 the moving blades was an open and obvious
15 condition. And by the plaintiff sticking his
16 hands into the moving blades, he was --
17 THE COURT: Ms. Scotto, let me stop
18 you there. With regard to product liability,
19 is that what you are referring to?
20 MS. SCOTTO: Well, the only case
21 against the direct defendant is a product case.
22 THE COURT: Open and obvious does not
23 relate to products liability.
24 MS. SCOTTO: Your Honor, may I
25 continue though? Or in the alternative I ask

1301
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1 that there would be a directed verdict against
2 the plaintiff on the issue of negligence and
3 proximate cause. Because the evidence showed
4 that the plaintiff caused his own accident and
5 the only issue that should be before the jury
6 is the percentage of the plaintiff's
7 negligence.
8 THE COURT: Okay.
9 MS. COTTER: I would concur in that
10 directed verdict on the basis of the
11 plaintiff's negligence as well.
12 MR. DURST: Thank you, your honor.
13 Referring to PJI 2:141.2, that commentary
14 refers -- discusses the issue of substantial
15 modification. That commentary indicates that
16 the issue of whether a machine was
17 substantially modified would fall within that
18 charge, only there wouldn't be a separate
19 charge for it because the issue is whether when
20 the product left the manufacturer's hands, it
21 was reasonably safe.
22 Now, in order for the issue of
23 substantial modification to absolve a
24 defendant, the defendant must show that when it
25 left the manufacturer's hands it was reasonably

1302
Proceedings
1 safe as designed but that later someone removed
2 a key device which rendered it not reasonably
3 safe.
4 This commentary specifically refers
5 to situations where there is an initial finding
6 that it was reasonably safe as sold. In our
7 case, we are claiming that the failure to have
8 the interlocked guard when that product was
9 sold by National Equipment, rendered the
10 product not reasonably safe when sold.
11 Then somewhere down the line
12 apparently someone added a gate and then
13 removed the gate. It was not reasonably safe
14 when sold. Now, modification did not render it
15 reasonably safe in the first place. The
16 modification only still did not bring it up to
17 the standard required of dough mixers that the
18 gate be interlocked.
19 Now, that commentary indicates that a
20 post sale modification does not defeat a
21 product liability claim unless those
22 modifications render a safe product defective
23 and caused injuries. Smith, you know, the --
24 THE COURT: Yes, Mr. Durst that is
25 her argument.
1303
Proceedings
1 MR. DURST: That's right.
2 THE COURT: So what is your counter
3 argument to that?
4 MR. DURST: I just made it, your
5 Honor.
6 THE COURT: Then let's proceed from
7 there. Anything further?
9 MS. COTTER: No your Honor.
10 MS. SCOTTO: Actually, I do, your
11 Honor, if I may just add.
12 There was some testimony that it was
13 possible that this was not the original gate
14 that was on top of the machine, I believe it
15 was by one the engineers. But there is nothing
16 substantive in the evidence that shows that
17 this was not the original gate. And the safety
18 gate itself is a safety feature. And its
19 removal constitutes a substantial modification.
20 And, in fact, plaintiff's counsel
21 asked the engineers if the gate was present at
22 the time would the accident have occurred? So
23 the safety gate itself is a safety feature not
24 just the interlock.
25 THE COURT: At this time I'm denying

1304
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1 that application, Counsel. All right.
2 MR. DURST: While you are on the
3 subject, your Honor, may I be heard?
4 THE COURT: With regard to?
5 MR. DURST: The charge. And the jury
6 questionnaire.
7 THE COURT: We are going now into the
8 robing room to look at the verdict sheet.
9 MS. SCOTTO: Your Honor, I had asked
10 if I can put the settlement offer on the
11 record. May I do that?
12 THE COURT: Yes.
13 MS. SCOTTO: Your Honor, there was an
14 offer of settlement made to plaintiff's counsel
15 within a total of $700,000; $600,000 offered on
16 behalf of my client, Ferrara and $100,000
17 offered on behalf of the defendant, National
18 Equipment. And I was advised by plaintiff's
19 counsel that the settlement offer was rejected.
21 MS. COTTER: Agreed.
22 THE COURT: What was the date of this
23 offer? Do you have a date?
24 MS. SCOTTO: It was made two days
25 ago.
1305
Proceedings
1 MS. COTTER: Which would be June 1st.
2 THE COURT: We can adjourn into the
3 robing room.
4 MS. SCOTTO: Your Honor --
5 MS. COTTER: Primary defendant rests.
6 MS. SCOTTO: Your Honor, third-party
7 defendant rests.
8 THE COURT: Nothing further?
9 MS. SCOTTO: I think that's
10 everything, Judge.
12 case adjourned to Friday, June 4, 2004 at
13 10:00 a.m.)
14
15
16
17
18
19
20
21
22
23
24
25
1306

2 ----------------------------------------X
CIRRO RODRIGUEZ,
3
Plaintiff,
4 Index No.
-against-
5 16482/95
7 Defendant.
----------------------------------------X
Index No.
10 -against- 16482/95
----------------------------------------X
13
851 Grand Concourse
June 4, 2004
15
B E F O R E:
16
18
19
20 -------------------------------------------------
22 outside the hearing of the jurors before I
23 proceed with my charge.
24 There was one remaining issue
25 yesterday with regard to Mr. Rogel's statement

1307
Proceedings
1 and counsel reviewed the statement and made
2 redactions, correct, but there is still one
3 item in that statement that I believe,
4 Ms. Scotto, you wish to have redacted.
5 MS. SCOTTO: Yes, your Honor. I can
6 show you would that be, okay?
7 THE COURT: Well, I already have it.
8 MS. SCOTTO: It starts out "we."
9 THE COURT: Yes, my court attorney
10 brought it to my attention. All right,
11 machines tilting arm, we continued to use.
12 MS. SCOTTO: No, your Honor. May I
13 show you which sentence it is? It's on page 2,
14 and the sentence is, "We would hold up
15 production if the machine went out of service."
16 There was no testimony by Mr. Rogel,
17 no one asked him any questions about holding up
18 production, so there is nothing inconsistent
19 about that. And if it was admitted for the
20 purposes of an inconsistent statement there is
21 nothing inconsistent about it and it should be
22 redacted.
24 understanding is that he did not indicate that,
25 that's why -- first he indicated he didn't even

1308
Proceedings
1 remember whether the tilt was not working. And
2 then indicated that yes, the reason they
3 continued using it with the tilt broken was
4 because of that, that they were holding up
5 production. And therefore, that is part of the
6 inconsistent statement that the reason that the
7 tilt -- that they continued using the tilt was
8 because of the holdup of production.
9 MS. COTTER: And that's my
10 recollection as well. I would agree with
11 Mr. Durst.
12 MR. DURST: So it's intermittently
13 interwoven.
14 THE COURT: Any other reasons for,
15 other than a prior inconsistent statement, that
16 that statement should go in?
17 MR. DURST: As an admission, of
18 course.
19 MS. COTTER: Well, he is admitting
20 that, you know, part of the reason they
21 continued to operate a machine that was in
22 disrepair was because they needed to move the
23 business along, the bakery business along.
24 MR. DURST: And as the manager he is
25 in a position to make a decision.

1309
Proceedings
1 MS. SCOTTO: I disagree that he has
2 speaking authority, he is the manager over the
3 people who mix the dough and make the cannolis.
4 He is not management.
5 MR. DURST: He was the manager of the
6 entire plant where they were working.
7 THE COURT: And frankly, based upon
8 our prior discussions with regard to Mr. Rogel,
9 the fact that he was someone that you produced
10 for the purposes of EBT as someone with
11 knowledge and --
12 MS. SCOTTO: No, your Honor, I did
13 not produce him. He was a non-party witness.
14 THE COURT: But he was nonetheless
15 deposed as someone with knowledge of the
16 happening of the events.
17 Moreover, in addition to the other
18 reasons that have been articulated, is there
19 another reason why that statement should be
20 allowed into evidence? Ms. Cotter?
21 MS. COTTER: Other than that it's an
22 admission and it's, you know, it's inconsistent
23 to an extent. No, there is no other reason.
24 THE COURT: Is there one more reason
25 perhaps?
1310
Proceedings
1 MR. DURST: It's relevant.
2 THE COURT: Aside from that.
3 MS. COTTER: Also the whole statement
4 is really admissions, the entire statement is
5 in for those same reasons so why would one line
6 be taken out?
7 THE COURT: There is another reason.
8 It goes to the motive for them to continue the
9 production, all right. Using a machine whose
10 tilting arm was not functioning. So for all of
11 those reasons that remains in evidence. And
12 this was Defendant's F. So let's have -- where
13 are the redactions that are going to be made?
14 MS. SCOTTO: There were no
15 redactions, that was the only line. I had an
16 objection to it going into evidence to begin
17 with.
18 THE COURT: I understand, but my
19 question is before you raised this objection
20 this was left with counsel to make -- to review
21 for purposes of redaction and there is no other
22 redaction?
23 MS. COTTER: No.
24 THE COURT: So I'm going to ask the
25 court reporter to please, since this is going

1311
Proceedings
1 in, there are two marks on this from two dates.
2 This is going in as Defendant's F; is that
3 correct?
4 MS. COTTER: Yes.
5 THE COURT: So where the first
6 marking was made as Plaintiff's No. 14, on
7 5/27, we will remark that as Defendant's F
8 5/27. Okay, so it's Defendant's F, 5/27/04.
9 There had been another marking on it as
10 Defendant's Exhibit A on 5/6. We are removing
11 that marking. If you want to, why don't you
12 just put F on both these marks so that the
13 jurors don't see that.
14 Now, I was also apprised -- and I
15 apologize for being late I was stuck in
16 traffic. I was not happy this morning. That's
17 why I officially believe in Murphy's Law.
18 Okay, so with regard to the verdict sheet that
19 we labored over long and hard yet again last
20 night in chambers, there is another issue that
21 was raised with regard to that verdict sheet.
22 MS. COTTER: Yes. Before we get to
23 that, Judge, did you want to just hear what the
24 last legal issue or two was just to move
25 these --
1312
Proceedings
1 THE COURT: We have already done
2 that.
3 MS. COTTER: These are court
4 exhibits? Can I give them to the Court then?
5 THE COURT: I said that a while ago.
6 I thought I said it a while ago it's a court
7 exhibit.
8 MS. COTTER: Okay, I'm sorry. I
9 thought you said we have to do it at the end.
10 It's not marked yet.
11 THE COURT: I mark all the court
12 exhibits at the end. You have already said
13 that you want them as a court exhibit.
14 MS. COTTER: Can I give them to the
15 clerk?
16 THE COURT: We will take them.
17 MS. COTTER: Then we wanted to mark
18 the Margo Tonnaer exhibits as court exhibits.
19 THE COURT: Again, I do that later.
20 What do we need to deal with right now?
21 MS. COTTER: Now, we can get to the
22 verdict sheet. Yesterday, your Honor, before
23 we did summations which was before the lunch
24 hour, we were handed a verdict sheet which we
25 were told would remain the verdict sheet with

1313
Proceedings
1 the exception of two additional questions, was
2 Ferrara negligent and was Ferrara's negligence
3 a substantial factor in causing the plaintiff's
4 injury.
5 With that understanding we went and
6 did summations and my summation was based upon
7 my understanding that that would be the verdict
8 sheet. In the afternoon and in our discussions
9 last night, we were handed a much longer
10 verdict sheet which actually adds a separate
11 negligence claim against National Equipment.
12 And my review of plaintiff's complaint is that
13 there is no negligence claim against National
14 Equipment.
15 If you look at paragraph 16 through
16 21 of plaintiff's complaint, you can see any
17 allegations as to negligence in the complaint.
18 And if you go through each, it's clear that
19 this is simply a products claim against
20 National Equipment and there is no separate
21 negligence claim. The only allegations which
22 Mr. Durst has proceeded on in this trial is
23 negligent sale of an allegedly defective
24 machine and that you cannot have a negligent
25 sale of a product, that's a product liability

1314
Proceedings
1 claim only.
2 Now, the verdict sheet, the latest
3 verdict sheet contains questions concerning the
4 negligence of National Equipment and Ferrara.
5 Yesterday, I believe third-party defendant's
6 counsel and I both objected to those negligence
7 questions on the verdict sheet on the grounds
8 that there was no negligence claim against
10 If you look at paragraph 16 through
11 21 of the complaint, it states that National
12 Equipment negligently designed the machine.
13 There is no evidence that we ever designed this
14 machine. There is no evidence that National
15 Equipment ever manufactured the machine. There
16 is no evidence that National Equipment
17 installed the machine or that any installation
18 led to the accident. There is no evidence that
19 National Equipment modified or altered the
20 machine. In fact, with respect to
21 manufacturer, plaintiff's -- manufacture of the
22 machine, plaintiff's own witness Margo Tonnaer
23 admitted that her father-in-law's company, not
24 National Equipment, manufactured the machine.
25 With respect to whether National

1315
Proceedings
1 Equipment modified or altered the machine, the
2 plaintiff claims that National Equipment sold
3 the machine in the condition that it existed at
4 the time it left the manufacturer's hands and
5 he claims that National Equipment is
6 responsible for selling the machine without
7 making any modifications.
8 So what it boils down to is there is
9 no claim, at least a viable one, with respect
10 to a cause of action for negligent sale of the
11 machine. There is no such cause of action.
12 That is a product liability claim and any
13 negligence as to that issue is contained within
14 the product liability charges. That's a
15 well-settled proposition.
16 So the verdict sheet is really, you
17 know, an erroneous one as it sits right now
18 with a separate negligence claim set forth
19 against National Equipment. To the extent the
20 Court is inclined to use this, I would like to
21 mark it as -- each verdict sheet proposed as a
22 court exhibit, the two from yesterday and the
23 one from this morning. If I had known that
24 before I went and summed up that the separate
25 negligence questions were going to be added to

1316
Proceedings
1 the verdict sheet, my summation would have been
2 very different and I would have to move for a
3 mistrial based upon the fact that I had to do a
4 summation without knowing about these separate
5 negligence questions that were ultimately and
6 potentially going to be on the final verdict
7 sheet.
8 I also had a separate issue for a
9 mistrial. I have moved for a mistrial on the
10 grounds that in Mr. Durst's closing statement
11 he stated outright to the jury that if you
12 don't find that National Equipment distributed,
13 sold this machine, Cirro Rodriguez gets
14 nothing. And if you find that this machine was
15 substantially altered Cirro Rodriguez gets
16 nothing. And I think that he stepped into the
17 shoes of the jurors and took on their job in
18 making those statements and I think that's
19 grounds for a mistrial.
20 He also stepped into your Honor's
21 shoes in telling them how to interpret the law
22 and, you know, proceed on answering questions
23 set forth on the verdict sheet.
25 MR. DURST: Your Honor, the

1317
Proceedings
1 negligence claim is a component of every
2 decision in a product liability case --
3 THE COURT: Let's address the issue
4 with regard to the distributor and not the
5 manufacturer with regard to negligence.
6 MR. DURST: Yes. Negligence is -- in
7 a product liable case, negligence --
8 THE COURT: We are not doing product
9 liability, now we are talking about negligence,
10 all right.
11 MR. DURST: Yes. In a product
12 liability -- can I just say what I want to say
13 and then -- I can't get it out. You don't know
14 what I'm going to say yet.
15 In a product liability case there are
16 three claims, negligence, strict product
17 liability and duty to warn. Those were pleaded
18 in the complaint. We have not withdrawn any of
19 those claims ever. There is negligence because
20 Ms. Tonnaer testified that the manufacturer
21 sends to it the United States, the distributor
22 then with knowledge of local laws, has the
23 responsibility to conform that machine to the
24 local laws before reselling it. There was
25 negligence in them not doing that. That's

1318
Proceedings
1 negligence.
2 And then we are saying there is a
3 negligence claim in the case, always has been,
4 there is a strict product liability which is
5 supposed to be an easier claim to prove because
6 there you don't have to prove that they knew of
7 a defect before they sold it. We are claiming
8 yeah, they knew of a defect before they sold it
9 and they sold it without fixing the defect.
10 They knew it didn't comply or should have known
11 that it did not comply with the standards of
12 the industry in existence at the time that they
13 resold it and therefore, they are negligent.
14 But even -- so really, the negligence
15 claim is -- is extremely the focus of the case.
16 The strict product liability claim came about
17 only when a manufacturer had no notice of a
18 defect. Here -- here there is ample notice of
19 a defect. So certainly there is a negligence
20 claim. And certainly there is a strict product
21 liability claim. To turn your back and pretend
22 you didn't know that would be a legal mistake
23 on your part. But not the Court's part or the
24 attorney -- the plaintiff's part.
25 MS. SCOTTO: Your Honor, may I be

1319
Proceedings
1 heard as well?
2 THE COURT: This has nothing to do
3 with third-party defendant.
5 like to make a record. It does concern me
6 because as a third-party defendant I step into
7 the shoes of the direct defendant and I have my
8 right to make any argument the defendant can.
9 THE COURT: I don't see how
10 third-party defendant steps into the
11 defendant's shoes.
12 MS. SCOTTO: It's because I'm the
13 third-party defendant and if she gets out of
14 the case, I get out of the case. That's why
15 the law says I step into her shoes. So I have
16 a right to be heard on any argument that the
17 direct defendant is allowed to make and I ask
18 that I have an opportunity to be heard.
19 THE COURT: Quickly, go ahead.
20 MS. SCOTTO: I also have an objection
21 to the verdict sheet because, as Ms. Cotter
22 said, before the summation we were supplied
23 with a copy of the verdict sheet. Plaintiff
24 objected to the verdict sheet because it didn't
25 have those two questions about Ferrara's

1320
Proceedings
1 negligence and a substantial factor. I
2 objected to those two questions being added and
3 the Court overruled me. We were told that we
4 were going to be provided with a final clean
5 version in the afternoon and the Court
6 requested that we do the summations with the
7 understanding that those two were the only new
8 changes.
9 The plaintiff's proposed verdict
10 sheet had requests concerning negligence of
11 National Equipment and the Court did not
12 include them in the verdict sheet. So I was
13 under the impression that the Court rejected
14 those requests and at the charge conference the
15 Court denied plaintiff's request for 2:120 and
16 2:135, which did concern negligence.
17 So all the parties did their
18 summations thinking that those were the only
19 two changes, only those two questions
20 concerning Ferrara's negligence would be made.
21 After the summations the Court supplied a copy
22 of a new verdict sheet and that verdict sheet
23 concerns the negligence of National Equipment
24 and Ferrara. And I did object in the robing
25 room. There was no negligence claim against

1321
Proceedings
1 National Equipment, there was only a product
2 liability claim and your Honor told me that you
3 looked at the pleadings and there was a
4 negligence claim.
5 But paragraph 16 through 21 of the
6 complaint showed these -- negligent
7 manufacture, design, negligent sale, negligent
8 repair, negligence modification. There is no
9 evidence to support any of these claims. There
10 is no evidence that National Equipment
11 manufactured the machine. Margo Tonnaer said
12 that her father-in-law did. There is no
13 testimony of Margo Tonnaer saying that these
14 machines had to conform by local laws.
15 In fact, she tried to testify about
16 the laws and I objected and that testimony was
17 stricken because that's your Honor's domain not
18 the witness. There was no evidence that
19 National Equipment installed it, no evidence
20 that they modified or altered it. The
21 plaintiff claims that National Equipment sold
22 the machine in the condition it existed at the
23 time it left the manufacturer's hands and
24 Mr. Durst claims that National Equipment is
25 responsible for selling the machine without any

1322
Proceedings
1 modification. That's his claim. So there is
2 no claim for a viable cause of action for a
3 negligent sale of a machine.
4 In fact, no such cause of action
5 exists because one cannot negligently sell a
6 machine. Selling a defective product is a
7 product liability claim only. And any claim
8 for negligence has to be supported by notice.
9 And here there is no evidence, nothing to
10 support a claim of notice. In fact, it is
11 never before the jury.
12 So the pleadings and record don't
13 establish a negligence claim and it would be
14 error to charge the jury on negligence of
15 National Equipment. Also the Court made sua
16 sponte changes to the verdict sheet after the
17 summations which caused prejudice to all the
18 parties by adding another cause of action to
19 the verdict sheet after the Court said that
20 there would only be two questions added about
21 the negligence of Ferrara Foods and whether it
22 was a substantial factor. Then the Court wrote
23 the verdict sheet and included a new cause of
24 action for negligence against National
25 Equipment. So if I had known that was going to

1323
Proceedings
1 be on the verdict sheet, I would have objected
2 to it and if the Court overruled the objection,
3 then my summation would have been different.
4 In an off the record discussion late
5 yesterday afternoon after the completion of
6 summations, I was provided with that second
7 version that the Court rewrote. And I would
8 request that the Court use the original verdict
9 sheet with the two changes that we discussed
10 before summations, and if it's the Court's
11 intention to use any other verdict sheet other
12 than that one, then I would ask for a mistrial.
13 MS. COTTER: I concur in the
14 application to use the original verdict sheet
15 with the two additional questions as to
16 Ferrara. Additionally --
17 THE COURT: Let me just rule on this,
18 all right, because we are wasting time.
19 Mr. Durst, I am not -- I did not give you the
20 charge 2:120 product liability manufacturer's
21 liability to remote consumer for negligence.
22 The commentary after that charge indicates that
23 charge deals only with the manufacturer's
24 liability based on negligence, which is what
25 you have been claiming is one of your causes of

1324
Proceedings
1 action here. The relevant charge for the
2 wholesale or distributor would be 2:140 with
3 regard to breach of express warranty. You have
4 no claim with regard to breach of express
5 warranty, nor did you bring out any proof with
6 regard to that, which is why I did not charge
7 or will not charge 2:120.
8 Having reviewed the verdict sheet I
9 come to the conclusion that the original
10 verdict sheet that we had is the appropriate
11 one to include questions of negligence
12 vis-a-vis the third-party defendant. So I
13 am -- we are going back to the original verdict
14 sheet, notwithstanding your claims that that is
15 incorrect because having reviewed the 2:120
16 commentary, I'm left with the conclusion that
17 the original was the one that we should have
18 gone with from the beginning. And we would not
19 have wasted the Court's time in chambers after
20 five yesterday. So you have your exceptions.
21 MR. DURST: Okay. Now, your Honor,
22 with regard to then if you are going to dismiss
23 the negligence claim, over my objection, we
24 then have to proceed to copy and paste
25 questions four and five into the strict product

1325
Proceedings
1 liability.
2 THE COURT: What is questions four
3 and five?
4 MR. DURST: They were the negligence
5 of Ferrara and substantial factor of Ferrara.
6 THE COURT: That's going to be in,
7 that's what was there originally.
8 MR. DURST: No -- if it was, that's
9 fine. If I may be heard it only belongs in one
10 place.
11 THE COURT: We are not going to
12 separate anything. It's just going to be one
13 flowing, there won't be any distinctions.
14 MS. SCOTTO: I just want the record
15 to be clear, your Honor, that there is no
16 product liability claim against my client only
17 a negligence claim and I cannot be included in
18 any product liability claim.
19 THE COURT: It's going to be one
20 verdict sheet, there won't be any separate
21 denomination as to negligence or product
22 liability.
23 MS. COTTER: Did we see the verdict
24 sheet that we are going with now?
25 THE COURT: You will see it. It's

1326
Proceedings
1 being worked on, that was essentially the first
2 one.
3 MR. DURST: Now, your Honor, with
4 regard -- I do want to make on the record the
5 objection that I was making yesterday.
6 THE COURT: I'm sorry, with regard to
7 the mistrial application by Ms. Cotter, with
8 regard to Mr. Durst's appealing to the jury's
9 sympathy in his summation, I noticed that no
10 one objected to it. I was looking at counsel
11 at defense table and no one was objecting. I
12 did not sua sponte make any curative
13 instruction and that is because there will be a
14 charge to the jury by the Court with regard to
15 sympathy for the plaintiff. So that will be
16 covered by the Court. So therefore, there is
17 no mistrial.
18 MR. DURST: Your Honor, may I put on
19 the record then my objection with regard to the
20 jury questions as to whether a defect -- were
21 any of the key safety features --
22 THE COURT: You have already done
23 that. We are not having that again.
24 MR. DURST: I want to put it on the
25 record.
1327
Proceedings
1 THE COURT: You have done that
2 before. We are not wasting time, it's five to
3 11. I'm not hearing applications that have
4 been made before.
5 MR. DURST: So it is on record that I
6 have objected to --
7 THE COURT: A zillion times.
8 MS. SCOTTO: Your Honor, you ruled on
9 the application for a mistrial just based upon
10 Mr. Durst's summation. Could you say what your
11 ruling is based upon the application -- didn't
12 we make another application for a mistrial, is
13 there another one outstanding?
14 THE COURT: No, I have ruled on all
15 the mistrial requests.
17 THE COURT: Let's get started.
19 on the record in open court.)
20 THE COURT: Let's bring the jurors
21 out.
25 gentlemen, have a seat. I trust everyone had a

1328
Proceedings
1 good morning, this morning.
3 THE COURT: You are ready for the
4 Court's charge to you.
5 All right, ladies and gentlemen, we
6 are now at the part of the trial where I will
7 instruct you on the law that's applicable to
8 this case after which you will retire for your
9 final deliberations.
10 You've heard the evidence introduced
11 by the parties and through the arguments of
12 their attorneys, you have learned the
13 conclusions which each party believes should be
14 drawn from the evidence presented to you.
15 Now, you will recall at the beginning
16 of the trial I stated for you certain
17 principles that you needed to have in mind as
18 the trial progressed. Briefly, they were that
19 you are bound to accept the law of the case as
20 I give it to you whether you agree with it or
21 not. And you will recall that extreme example
22 of President Shirley Temple of the Blue Cheese
23 Moon. Further, that you were not to infer from
24 any of my rulings or from anything that I said
25 during the course of the trial that I favor any

1329
Proceedings
1 party to the lawsuit. And additionally, that
2 you were not to draw any inferences or
3 conclusions from an unanswered question nor
4 consider testimony which has been stricken from
5 the record in reaching your decision.
6 In deciding this case, you may
7 consider only the exhibits which have been
8 admitted in evidence and the testimony of the
9 witnesses as you have heard in the courtroom or
10 as there has been read to you testimony given
11 on examination before trial. And under our
12 rules of practice, an examination before trial
13 is taken under oath and is entitled to equal
14 consideration by you, notwithstanding the fact
15 that it was taken prior to trial and outside
16 the courtroom, or by stipulations agreed to by
17 the parties. And there are stipulations that I
18 will get to at an appropriate moment.
19 Now, at times during the trial I may
20 have sustained objections to questions asked
21 without allowing that the witness answer the
22 question or where an answer was made,
23 instructed that it be stricken from the record
24 and that you disregard it and dismiss it from
25 your minds. You may not draw any inferences or

1330
Proceedings
1 conclusions from an unanswered question nor may
2 you consider testimony which has been stricken
3 from the record in reaching your decision.
4 The law requires that your decision
5 be made solely upon the evidence before you.
6 Such items as I have excluded from your
7 consideration were excluded because they were
8 not legally admissible. You are not to
9 speculate with regard to testimony of a witness
10 or exhibits which are not in evidence. Your
11 verdict must be based solely upon what is in
12 evidence.
13 And while we are on that subject, at
14 a point during the course of the trial I had
15 allowed one item of the defendant, Defendant's
16 Exhibit C with regard to correspondence between
17 Mr. Durst and Ms. Tonnaer. Other items, B and
18 D, letters by Ms. Tonnaer and Mr. Durst, were
19 marked for identification. Ms. Tonnaer gave
20 some testimony with regard to those letters.
21 And that testimony regarded the letters dated
22 November 11, 1997, November 28, 1998, and
23 May 11, 1999. I inaccurately allowed C to go
24 into evidence. I'm withdrawing that from
25 evidence. That should not have been allowed to

1331
Proceedings
1 be received in evidence. You did not have
2 these letters published to you, but to the
3 extent that there may have been testimony from
4 Ms. Tonnaer regarding why she wrote the letter
5 and her testimony regarding the contents of the
6 letters, you must exclude this testimony -- and
7 it will be stricken from the record -- but you
8 must exclude this testimony in your
9 deliberations of this case.
10 Also, as I just indicated in my
11 charge you may not draw any inferences or
12 conclusions from the fact that this testimony
13 has been stricken from the record. I
14 inadvertently allowed that to go in so any
15 testimony with regard to that statement or
16 those statements concerning those letters are
17 to be disregarded by you, stricken from the
18 record and you are not to speculate with regard
19 to any of that testimony.
22 THE COURT: Also, while we are at it,
23 I believe that Plaintiff's 4A through C was
24 also withdrawn from evidence. Those you will
25 recall were the diplomas of Mr. Rodriguez. So

1332
Proceedings
1 those were previously withdrawn from evidence.
2 As I just indicated Defendant's B, C
3 and D, those are the letters that I have just
4 referred to. So any testimony with regard to
5 those items, you will disregard and they will
6 be stricken.
7 You are to consider only competent
8 evidence. At times during the trial I may have
9 sustained objections to questions -- strike
10 that.
11 The law does not, however, require
12 you to accept all of the evidence that I shall
13 admit and in deciding what evidence you will
14 accept, you must make up your own evaluation of
15 the testimony given by each of the witnesses
16 and decide how much weight you choose to give
17 to that testimony. The testimony of a witness
18 may not conform to the facts as they occurred
19 because, for example, he or she is
20 intentionally lying or, for example, because
21 the witness did not accurately see or hear what
22 he or she is testifying about or because the
23 witness' recollection is faulty or the witness
24 has not expressed himself or herself clearly in
25 testifying.
1333
Proceedings
1 There is no magical formula by which
2 you evaluate testimony. As I indicated to you
3 beforehand, you bring to this courtroom all of
4 the experiences and backgrounds of your lives
5 and in your everyday affairs you decide for
6 yourselves the reliability or unreliability of
7 things that people tell you. Those simple
8 tests which you use in your everyday dealings
9 are the tests which you apply in your
10 deliberations.
11 For instance, you may consider all of
12 the following factors in evaluating the
13 testimony: The interest or lack of interest of
14 any witness in the outcome of the case, the
15 bias or prejudice of a witness if there be any,
16 the age, the appearance and the manner in which
17 the witness gives testimony on the stand, the
18 opportunity that the witness had to observe the
19 facts about which he or she testifies, the
20 probability or improbability of the witness'
21 testimony when considered in the light of all
22 of the other evidence in the case. These are
23 all items to be considered by you in deciding
24 how much weight, if any, you will give to this
25 witness' testimony.
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Proceedings
1 Now, if it appears that there is a
2 discrepancy in the evidence, you will then have
3 to consider whether the apparent discrepancy
4 can be reconciled by fitting the two stories
5 together. If, however, that is not possible,
6 you will then have to decide which of the
7 conflicting stories you will accept.
8 Negligence is a lack of ordinary
9 care. It is the failure to use that degree of
10 care which a reasonably prudent person would
11 have used under the same circumstances.
12 Negligence may arise from doing an act that a
13 reasonably prudent person would not have done
14 under the same circumstances or, on the other
15 hand, from failing to do an act that a
16 reasonably prudent person would have done under
17 the same circumstances.
18 An act or omission is regarded as a
19 cause of an accident if it was a substantial
20 factor in bringing about the injury; that is,
21 if it had such an effect in producing the
22 injury that reasonable people would regard it
23 as the cause of the injury.
24 Whether the negligence of a
25 particular party was a substantial factor in

1335
Proceedings
1 causing the injury does not necessarily depend
2 on the percentage of fault that may be
3 apportioned to that party. There may be more
4 than one cause of an injury. Where the
5 independent and negligent acts or omissions of
6 two or more parties caused injury to another,
7 each of those negligent acts or omissions is
8 regarded as a cause of that injury, provided
9 that it was a substantial factor in bringing
10 about that injury.
11 Negligence requires both a
12 foreseeable danger of injury to another and
13 conduct that is unreasonable in proportion to
14 that danger. A person is only responsible for
15 the results of his or her conduct if the risk
16 of injury is reasonably foreseen. The exact
17 occurrence or exact injury does not have to be
18 foreseeable, but injury as a result of incident
19 conduct must be not merely possible but
20 probable.
21 There is negligence if a reasonably
22 prudent person could foresee injury as a result
23 of his or her conduct and acted unreasonably in
24 the light of what could be foreseen. On the
25 other hand, there is no negligence if a

1336
Proceedings
1 reasonably prudent person could not have
2 foreseen any injury as a result of his or her
3 conduct or acted reasonably in light of what
4 could have been foreseen.
5 To say that a party has a burden of
6 proof on a particular issue means that
7 considering all the evidence in the case, the
8 party's claim on that issue must be established
9 by a fair preponderance of the credible
10 evidence. As I say, the credible evidence
11 means the testimony or exhibits that you find
12 to be worthy of belief. A preponderance means
13 the greater part of the evidence. That does
14 not mean the greater number of witnesses or the
15 greater length of time taken by either side.
16 The phrase preponderance of the evidence refers
17 to the quality of the evidence, its weight and
18 the effect that it has on your minds.
19 In order for a party to prevail on an
20 issue on which he or she has the burden of
21 proof, the evidence that supports his or her
22 claim on that issue must appeal to you as more
23 nearly representing what happened than the
24 evidence opposed to it. If it does not or if
25 it weighs so evenly that you are unable to say

1337
Proceedings
1 that there is a preponderance on either side,
2 you must decide the question against the party
3 who has the burden of proof and in favor of the
4 opposing party.
5 In this case, the plaintiff claims
6 that the defendant caused the accident. The
7 defendant claims that he did not cause the
8 accident, as well as a third-party defendant,
9 but that the plaintiff did. And the defendant
10 says that even if he did, the plaintiff also
11 caused the accident.
12 The plaintiff has the burden of proof
13 of proving that the defendant was negligent and
14 that defendant's negligence was a substantial
15 factor in causing the accident. The defendant
16 has the burden of proving that the plaintiff
17 was negligent and that the plaintiff's
18 negligence was a substantial factor in causing
19 the accident.
20 If you find that the defendant was
21 negligent and the defendant's negligence
22 contributed to causing the accident, you must
23 next consider whether the plaintiff was also
24 negligent and whether the plaintiff's conduct
25 contributed to causing the accident.

1338
Proceedings
1 Ladies and gentlemen, just give me
2 one quick moment.
3 (Pause.)
4 THE COURT: I'm sorry, let me just
5 start again because I inadvertently charged you
6 with regard to negligence as to plaintiff and
7 defendant, I misspoke. It is with regard to
8 the defendant and third-party defendant with
9 regard to negligence claims. All right, so
10 defendant is claiming that the third-party
11 defendant was negligent. All right, ladies and
12 gentlemen.
13 So let me start again with regard to
14 2:36. If you find that the third-party
15 defendant was negligent and that the
16 third-party defendant's negligence contributed
17 to causing the accident, you must next consider
18 whether plaintiff was also negligent and
19 whether the plaintiff's conduct contributed to
20 causing the accident.
21 The defendant -- third-party
22 defendant contends that the plaintiff was
23 comparatively negligent in that knowing that
24 the machine was in operation, he nonetheless
25 continued to remove dough from the machine and

1339
Proceedings
1 failed to exercise reasonable care -- strike
2 that -- failed to exercise the standard of care
3 which a reasonably prudent person having the
4 same condition would use under the same
5 circumstances. You may consider this along
6 with all of the other evidence.
7 The burden is on the third-party
8 defendant to prove that the plaintiff was
9 negligent and that that negligence contributed
10 to causing the accident. If you find that the
11 plaintiff was not negligent or if negligent,
12 that his negligence did not contribute to
13 causing the accident, you should go no
14 further -- strike that -- you should follow the
15 instructions on the verdict sheet.
16 If, however, you find that the
17 plaintiff was negligent and that his negligence
18 contributed to causing the accident, you must
19 then apportion fault among the plaintiff and
20 the third-party defendant. Weighing all the
21 facts and circumstances you must consider the
22 total negligence; that is, the negligence of
23 both the plaintiff and the third-party
24 defendant which contributed to causing the
25 accident and determine what percentage of fault

1340
Proceedings
1 is chargeable to each.
2 In your verdict you must state the
3 percentages you find and the total of those
4 percentages must equal 100 percent. It will be
5 clear to you, ladies and gentlemen, when we
6 review the verdict sheet. Okay.
7 In reaching your verdict, you are not
8 to be affected by sympathy for any of the
9 parties, what the reaction of the parties or of
10 the public to your verdict may be, whether it
11 will please or displease anyone, be popular or
12 unpopular or indeed, any consideration outside
13 the case as it has been presented to you in
14 this courtroom. You should consider only the
15 evidence, both the testimony and the exhibits,
16 find the facts from what you consider to be
17 believable evidence and apply the law as I give
18 it to you.
19 Your verdict will be determined by
20 the conclusion you reach no matter whom the
21 verdict helps or hurts. Everyone understand
22 that? Any consideration with regard to
23 sympathy for any of the parties is not for you
24 to consider. That has nothing to do with this
25 case. Does everyone understand that?

1341
Proceedings
1 (All answered yes).
2 THE COURT: If you find that any
3 witness has willfully testified falsely as to
4 any material fact, that is, as to an important
5 matter, the law permits you to disregard
6 completely the entire testimony of that witness
7 upon the principle that one who testifies
8 falsely about one material fact is likely to
9 testify falsely about everything.
10 You are not required, however, to
11 consider such a witness as totally
12 unbelievable. You may accept so much of his or
13 her testimony as you deem true and disregard
14 what you feel is false. By the processes which
15 I have just described to you, you as the sole
16 judges of the facts decide which of the
17 witnesses you will believe, what portion of
18 their testimony you accept, and what weight you
19 will give to it.
20 Now, you may have heard testimony in
21 this case with regard to an attorney or an
22 investigator speaking with a witness about the
23 case before the witness testified here at the
24 trial. As I explained to you preliminarily,
25 the law does not prohibit an attorney or an

1342
Proceedings
1 investigator from speaking to a witness about
2 the case before the witness testifies at the
3 trial nor does it prohibit an attorney from
4 telling the witness or asking the witness the
5 questions that will be asked at trial.
6 You may also have heard that a
7 witness read certain materials, that is
8 reviewed certain materials pertaining to the
9 case before the witness testified at trial.
10 Again, the law does not prohibit a witness from
11 reviewing written material pertaining to the
12 case before the witness testifies at the trial.
13 Again, ladies and gentlemen, there is
14 nothing unlawful or underhanded about an
15 attorney or an investigator preparing a witness
16 in advance of the trial for the witness'
17 testimony, nor is there anything unlawful or
18 underhanded about a witness refreshing his or
19 her recollection by reviewing written material
20 pertaining to the case before the witness
21 testifies at the trial.
24 THE COURT: Now, ladies and
25 gentlemen, although as jurors you are

1343
Proceedings
1 encouraged to use all of your life experiences
2 in analyzing testimony and reaching a fair
3 verdict, you may not communicate any personal
4 or professional expertise that any given one of
5 you may have and other facts which are not in
6 evidence to the other jurors during your
7 deliberations. You must base your discussions
8 and decisions solely upon the evidence
9 presented to you during the trial and that
10 evidence alone.
11 You may not consider or speculate on
12 matters not in evidence or matters outside the
13 case. So to the extent that any of my six
14 sworn jurors has any particular expertise in a
15 given area, the subject of which may have been
16 gone over in this case, you are not to share
17 that personal expertise or professional
18 expertise that you may have with your fellow
19 jurors with regard to the deliberative process.
20 Obviously, you use it yourself with regard to
21 your decision as to the facts of this case, but
22 other than that, you are not to use that
23 special expertise in the deliberative processes
24 because then you become an unknown expert in
25 the jury room which is not allowable.

1344
Proceedings
2 (All answered yes).
3 THE COURT: Thank you. Plaintiff and
4 defendant both testified before you. As
5 parties to the action, both are interested
6 witnesses. An interested witness is not
7 necessarily less credible than a disinterested
8 witness. The fact that he is interested in the
9 outcome of the case does not mean that he has
10 not told the truth. And when I say plaintiff
11 and defendant, in this case we had the
12 plaintiff Mr. Rodriguez and when I say
13 defendant we had Mr. Greenberg, who is an
14 officer of the corporation, who also testified.
15 It is for you to determine from their
16 demeanor on the stand and such other tests --
17 let me start again.
18 An interested witness is not
19 necessarily less credible than a disinterested
20 witness. The fact that he is interested in the
21 outcome of the case does not mean that he has
22 not told the truth. Again, it is for you to
23 determine from the demeanor on the stand and
24 such other tests as your experience dictates
25 whether or not that testimony has been

1345
Proceedings
1 influenced intentionally or unintentionally by
2 his interest. You are at liberty if you deem
3 it proper under all of the circumstances, to do
4 so, to disbelieve the testimony of such a
5 witness even though it is not otherwise
6 impeached or contradicted.
7 However, you are not required to
8 disbelieve such a witness and you may accept
9 such part of his testimony as you deem
10 reliable, and reject such part as you deem
11 unworthy of acceptance.
12 In this case, you also heard
13 testimony from various employees of the parties
14 and you heard testimony from Mr. Terrence
15 Saachi, who at the time of the examination
16 before trial was an employee of the defendant.
17 You also heard from Mr. Ernie Freymuller, who
18 testified in court and you will recall that he
19 was an employee of the defendant. He was an
20 investigator of the defendant. You also heard
21 testimony through the examinations before trial
22 of Mr. Ed Scoppa, who was an -- and Mr. Miguel
23 Rogel. They were both, at the time of their
24 examinations before trial, employees of the
25 third-party defendant.
1346
Proceedings
1 Now, the fact that these witnesses
2 were and some may still be employees of the
3 parties and the testimony that you've heard
4 from them with regard to their relations with
5 their respective employers may be considered by
6 you in determining whether the testimony of
7 those witnesses were in any way influenced by
8 the employment relationship with the various
9 parties.
10 MR. DURST: Your Honor, Mr. Rogel was
11 not employed at the time.
12 THE COURT: Mr. Durst, this is
13 inappropriate, sir. We will refrain from doing
14 that.
16 THE COURT: We have an opportunity to
17 confer when we are in the robing room with
18 regard to charges after I'm done.
20 THE COURT: If you have any
21 exceptions, you will take your pen and a pad
22 and you will note it and you will bring it to
23 my attention at the appropriate time.
24 MR. DURST: Okay. Thank you, your
25 Honor.
1347
Proceedings
1 THE COURT: You will recall, ladies
2 and gentlemen, that we heard testimony from the
3 following witnesses concerning their particular
4 qualifications as experts in the various
5 fields: Those were Dr. Eunice, who was the
6 plaintiff's doctor, Dr. Griffith as you will
7 recall the plaintiff witness with regard to
8 vocational rehabilitation, and Mr. Pascuiti,
9 also the defendant's witness with regard to
10 vocational rehabilitation. And they shared
11 with you their opinions concerning the issues
12 in this case.
13 Now, when a case involves a matter of
14 science or art or requires special knowledge or
15 skill not ordinarily possessed by the average
16 person, an expert is permitted to state his
17 opinion for the information of the Court and
18 jury. The opinions stated by such an expert
19 who testified before you was based upon the
20 particular facts as that expert obtained
21 knowledge of them and testified to them before
22 you or as the attorney who questioned the
23 expert asked the expert to assume.
24 You may reject the expert's opinion
25 if you find the facts to be different from

1348
Proceedings
1 those which formed the basis of that opinion.
2 You may also reject the opinion if, after
3 careful conversation of all of the evidence in
4 the case, expert or otherwise, you disagree
5 with that opinion.
6 In other words, ladies and gentlemen,
7 you are not required to accept an expert's
8 opinion to the exclusion of the facts and
9 circumstances disclosed by our testimony. Such
10 an opinion is subject to the same rules
11 concerning reliability as testimony of any
12 other witness. It is given to assist you in
13 reaching a proper conclusion. It is entitled
14 to such weight as you find the expert's
15 qualifications in the field warrant and must be
16 considered by you, but is not controlling upon
17 your judgment.
18 A distributor who sells a product in
19 a defective condition is liable for injury
20 which results from use of the product when such
21 product is used for its intended or reasonably
22 foreseeable purpose. A product is defective if
23 it is not reasonably safe; that is, if the
24 product is so likely to be harmful to persons
25 that a reasonable person who had actual

1349
Proceedings
1 knowledge of its potential for producing injury
2 would conclude that it should not have been
3 marketed in that condition.
4 It is not necessary to find that the
5 distributor knew or should have known of the
6 product's potential for causing injury in order
7 to determine that it was not reasonably safe.
8 It is sufficient that a reasonable person who
9 did, in fact, know of the product's potential
10 for causing injury and of the available
11 alternative designs would have concluded that
12 the product should not have been marketed in
13 that condition, after balancing the risks
14 involved in using the product against one, the
15 product's usefulness and its cost and against,
16 two, the risk, usefulness and cost of the
17 alternative designs as compared to the product
18 defendant did market.
19 The burden of proving that the
20 product was defective and that the defect was a
21 substantial factor in producing plaintiff's
22 injury is on the plaintiff. The first question
23 you will answer is whether the defendant,
24 National Equipment Corporation, was a
25 distributor of the dough mixer in question. If

1350
Proceedings
1 you find that defendant National Equipment did
2 not distribute the dough mixer involved in this
3 incident, you need proceed no further.
4 If you find that the defendant
5 National Equipment Corporation was a
6 distributor of the dough mixer in question, you
7 must then answer the question whether the
8 defendant's dough mixer was defective.
9 Plaintiff claims that defendant's dough mixer
10 had a design defect because the dough mixer did
11 not have an interlock guard which would have
12 automatically stopped the blades of the machine
13 if the safety grids/grate was open or was not
14 in place.
15 Defendant denies that the dough mixer
16 was defective. If you find that the
17 defendant's product was reasonably safe for its
18 intended or unintended but reasonably
19 foreseeable purpose, you will find that it was
20 not defective and you need proceed no further
21 in your deliberations. If you find that the
22 dough mixer was defective, you must next
23 determine whether the defect existed when it
24 left the hands of the defendant National
25 Equipment.
1351
Proceedings
1 The fact that the dough mixer has
2 been out of National Equipment's hands and been
3 handled or used by other persons such as the
4 third-party defendant Ferrara Foods and the
5 plaintiff, does not prevent you from drawing
6 the inference that the product was, in fact,
7 defective when it left the defendant's hands,
8 if on all the evidence you find that to be a
9 reasonable inference.
10 If the nature of the defect is such
11 that the probability that someone else caused
12 it is remote then you may, if on all the
13 evidence you find it reasonable to do so, infer
14 that the defect existed when the dough mixer
15 left the hands of the defendant.
16 If you find that the defect did not
17 exist at the time the product left National
18 Equipment, you will find for the defendant in
19 this issue. If you find that the third-party
20 defendant Ferrara Foods made subsequent
21 modifications to the dough mixer in question
22 which substantially altered any key safety
23 features, then you will proceed to consider
24 whether the subsequent alterations of the dough
25 mixer was a substantial factor in causing the

1352
Proceedings
1 plaintiff's injuries.
2 If you find that the subsequent
3 alteration was a substantial factor in causing
4 plaintiff's injuries, you will find for
5 defendant National Equipment on this issue and
6 you need proceed no further in your
7 deliberations. If you find that defendant's
8 product was defective and that the defect
9 existed when it left the hands of defendant
10 National Equipment, you will proceed to
11 consider whether the defect was a substantial
12 factor in plaintiff's injury; that is, whether
13 a person would regard it as a cause of the
14 injury.
15 If you find that the defect was not a
16 substantial factor in causing plaintiff's
17 injury, you need proceed no further in your
18 deliberations. If you find that the defect in
19 the defendant's product was a substantial
20 factor in causing plaintiff's injury, then you
21 will proceed to consider whether plaintiff
22 contributed to his own injuries.
23 The burden of proving that plaintiff
24 contributed to his own injuries is on the
25 defendant. In this regard, you will consider

1353
Proceedings
1 the following questions: One, whether at the
2 time of the occurrence the defendant's product
3 was being misused; two, whether plaintiff in
4 the use of reasonable care could have both
5 discovered the defect and realized the danger;
6 and three, whether plaintiff by use of
7 reasonable care could have otherwise avoided
8 his injury.
9 If you find that the product was
10 misused or that the plaintiff in the use of
11 reasonable care could have discovered the
12 defect and realized its danger or that the
13 plaintiff in the use of reasonable care could
14 otherwise have avoided his injury, then you
15 must apportion the responsibility of plaintiff
16 and defendant for causing the occurrence and
17 resulting injury.
18 Weighing all the facts and
19 circumstances, you must consider the total
20 responsibility; that is, the responsibility of
21 the plaintiff, defendant and third-party
22 defendant which contributed to causing the
23 accident and determine what percentage is
24 chargeable to each. In your verdict you will
25 state the percentages you find. The total of

1354
Proceedings
1 these percentages however, ladies and
2 gentlemen, must equal 100 percent.
3 My charge to you on the law of
4 damages must not be taken by you, ladies and
5 gentlemen, as a suggestion that you should find
6 for the plaintiff. As I said, it is for you to
7 decide on the evidence presented and the rules
8 of law that I have given to you whether the
9 plaintiff is entitled to recover from the
10 defendant.
11 If you decide that the plaintiff is
12 not entitled to recover from the defendant, you
13 need not consider damages. Only if you decide
14 that the plaintiff is entitled to recover will
15 you consider the measure of damages. If you
16 find that the plaintiff is entitled to recover
17 from the defendant, you must render a verdict
18 in a sum of money that will justly and fairly
19 compensate the plaintiff for all loss resulting
20 from the injuries he sustained.
21 If you decide that defendant is
22 liable, plaintiff is entitled to recover a sum
23 of money which will justly and fairly
24 compensate him for any injury and for the pain
25 and suffering to date caused by the defendant.

1355
Proceedings
1 Of course, that would be conscious pain and
2 suffering, meaning pain and suffering of which
3 there was a level of awareness by the
4 plaintiff.
5 In determining the amount, if any, to
6 be awarded to the plaintiff for pain and
7 suffering, you may take into consideration the
8 effect that plaintiff's injuries have had on
9 plaintiff's ability to enjoy life; that is,
10 loss of enjoyment of life involves the loss of
11 the ability to perform tasks, to participate in
12 the activities which were part of the person's
13 life before the injury, and to experience the
14 pleasures of life. However, a person as I
15 said, suffers the loss of the enjoyment of life
16 when that person is aware of the loss that he
17 has suffered.
18 If you find that plaintiff as a
19 result of his injuries suffered some loss of
20 the ability to enjoy life and that he was aware
21 of such a loss, you may take that loss into
22 consideration in determining the amount to be
23 awarded to plaintiff for pain and suffering to
24 date.
25 With respect to any of the

1356
Proceedings
1 plaintiff's injuries or disabilities that you
2 find to be permanent, the plaintiff is entitled
3 to recover for future pain, suffering and
4 disability and the loss of his ability to enjoy
5 life. In this regard, you take into
6 consideration the period of time the plaintiff
7 can be expected to live. And in accordance
8 with the statistical life expectancy tables,
9 plaintiff, who is currently 27 years of age,
10 now has an expected life -- has a life
11 expectancy of an additional 46.9 years.
12 Now, such a table, however, provides
13 nothing more than a statistical average. It
14 neither guarantees that the plaintiff will live
15 that additional 46.9 years nor does it mean
16 that he will not live for a longer period. The
17 life expectancy figure I have given to you is
18 not binding upon you, but may be considered by
19 you together with your own experience and the
20 evidence you've heard concerning the condition
21 of the plaintiff's health, his habits,
22 employment and activities in determining what
23 the plaintiff's present life expectancy is.
24 If your verdict is in favor of
25 plaintiff, plaintiff will not be required to

1357
Proceedings
1 pay income taxes on the award and therefore,
2 ladies and gentlemen, you must not either add
3 to or subtract from the award any amount on
4 account of taxes.
7 THE COURT: If you decide for the
8 plaintiff on the question of liability, you
9 must include in your verdict an award for past
10 and future pain and suffering. That amount
11 must include the amount for the injury suffered
12 and for the permanent affect of the injury, if
13 any.
14 Based upon the evidence, you may also
15 include an award for each of the following
16 items separately divided into amounts intended
17 to compensate the plaintiff for damages
18 incurred before your verdict and amounts
19 intended to compensate the plaintiff for
20 damages to be incurred in the future such as
21 medical expenses, lost earnings -- I'm sorry,
22 strike that. Medical expenses and future
23 impairment of earning ability as well. If you
24 make an award for any item of damages to be
25 incurred in the future, then for each such item

1358
Proceedings
1 you must state the period of years over which
2 the amount awarded is intended to provide
3 compensation and the amount you fix must
4 represent the full amount awarded to plaintiff
5 for that item of damages for that future period
6 without reduction to present value. And you
7 will review the verdict sheet, ladies and
8 gentlemen and we will review those items.
9 All right. If you decide not to make
10 an award as to any item, you will insert the
11 word "none" as to that item. If you decide to
12 award any amounts intended to compensate the
13 plaintiff for damages to be incurred in the
14 future, then for each item for which an award
15 is made you will state the period of years over
16 which such items are intended to provide
17 compensation.
18 Can counsel come up to the bench one
19 quick moment?
21 the bench among the Court and all counsel.)
22 THE COURT: Ladies and gentlemen, I'm
23 going to give you a quick two minutes because I
24 just discovered that I inaccurately omitted
25 something from the verdict sheet. So before I

1359
Proceedings
1 give it to you, because each one of you will
2 have a copy to review with me, I'm going to
3 handwrite it in because I inadvertently left
4 something out.
5 So please forgive me and I saw that
6 some of you needed to stretch anyway, so this
7 might be an appropriate time to throw some cold
8 water on your faces.
9 Do not discuss the case among
10 yourselves nor with anyone else. Do not
11 discuss allow anyone to discuss the case with
12 you. If anyone attempts to do so please inform
13 me immediately.
17 room, in the presence of the Court, all
19 jury.)
21 outside the hearing of the jury. We initially
22 came in here because the Court noted on the
23 damages part of the verdict sheet that the
24 Court had inadvertently omitted a line which
25 reflects rehabilitation services, dollar amount

1360
Proceedings
1 and the vote as to future damages. So the
2 Court is handwriting that into the Court's
3 copy.
4 When I review it with the jurors who
5 will each have a copy of the verdict sheet, I
6 will tell them that we will give them another
7 copy which has that particular entry made. The
8 Court inadvertently omitted that from the
9 verdict sheet.
10 MR. DURST: Your Honor, just one
11 sentence, I would request that impairment of
12 earning ability be included in the past damages
13 since nine years have passed since the
14 accident.
15 MS. COTTER: I would request that a
16 question, was plaintiff negligent and was
17 plaintiff's negligence a substantial factor in
18 causing the accident, be added for the reason
19 that there are three questions pertaining to
20 the plaintiff; namely, did plaintiff misuse
21 defendant's product, could plaintiff have
22 discovered the defect and realized the danger
23 and could plaintiff have avoid his injury
24 through the use of reasonable care.
25 I do believe the jurors could find

1361
Proceedings
1 that plaintiff was otherwise negligent and
2 still answer all three of those questions no.
3 Also, avoided his injury seems to be all or
4 nothing. You know, as if I was completely
5 negligent. It just seems that it would be
6 clearer if just those two questions were added.
7 MS. SCOTTO: I'm going to join in
8 Ms. Cotter's objection. That's the trouble I
9 was having with the use of the word avoid, that
10 it could would mean that the plaintiff
11 completely caused his accident and they could
12 find that he just contributed to it.
13 THE COURT: So what are you
14 suggesting then?
15 MS. COTTER: After No. 8, was
16 plaintiff negligent and then after that another
17 question, was plaintiff's negligence a
18 substantial factor in causing his accident and
19 leave the other three there as well.
20 MR. DURST: It's just my position
21 that having five questions asking the jury to
22 respond to whether the plaintiff was negligent,
23 comparatively negligent, it was never, you
24 know, gives undue weight to that issue, that
25 question.
1362
Proceedings
1 MS. SCOTTO: I just join in
2 Ms. Cotter's request for the reasons she
3 stated.
4 THE COURT: We had this conversation
5 off the record and I thought we just agreed
6 that essentially those questions, which come
7 straight out of the PJI, essentially restate
8 the same thing as you have just requested with
9 regard to negligence issues. It's the same
10 act.
11 MS. COTTER: As I just read them
12 though, conceivably the jury could find that
13 the plaintiff was negligent, yet still answer
14 all three of these questions, which are
15 specific, no.
16 THE COURT: I'm not quite sure how
17 that happens.
18 MS. SCOTTO: Your Honor, if they
19 answer Question No. 11, Could the plaintiff by
20 use of reasonable care have avoided his
21 accident, if they find that I would take
22 avoided to mean completely, that the accident
23 would not have occurred but for his conduct.
24 But they could also find that he was partially
25 responsible and I don't think that leaves them

1363
Proceedings
1 that option.
2 MS. COTTER: And he could have
3 clearly been negligent and not misused the
4 product. And he could have not realized that
5 there was a defect there, yet still been
6 negligent in making the decision to stick his
7 hand in a moving mixer.
10 THE COURT: With regard to your,
11 Ms. Scotto, objection to lines -- questions 10,
12 11 those are the two ones that you have
13 difficulty with, correct?
14 MS. SCOTTO: Yes.
15 THE COURT: Especially No. 11?
16 MS. SCOTTO: Yes.
17 THE COURT: This comes straight from
18 the charge books model verdict sheet so I'm not
19 changing that.
21 THE COURT: We are back in the robing
22 room and the court reporter has brought in her
23 computer and I believe that the charge that you
24 are referring to is 2:36, comparative
25 negligence.
1364
Proceedings
1 MS. SCOTTO: I think that's right,
2 Judge.
3 THE COURT: Let's have the court
4 reporter read that back, because I think I did
5 indicate if you find that the third-party
6 defendant was negligent, which is your claim,
7 Ms. Cotter as against the third-party
8 defendant, correct?
9 MS. COTTER: Yes.
10 THE COURT: And that the third-party
11 defendant's negligence contributed to causing
12 the accident, you must next consider whether
13 the plaintiff was also negligent and whether
14 the plaintiff's conduct contributed to causing
15 the accident. I believe that's what I said to
16 the jurors. So let's go back there.
17 (The record is read by the reporter.)
18 THE COURT: Is that what you are
19 referring to?
20 MS. SCOTTO: It still continues on,
21 Judge.
22 THE COURT: I'm just tracking the
23 language of that particular charge.
24 MS. SCOTTO: But it's not only my
25 contention that the plaintiff caused his own

1365
Proceedings
1 accident, it's the direct defendant's claim as
2 well that the plaintiff caused his own
3 accident.
4 LAW SECRETARY: You are saying it
5 should be the defendant and third-party
6 defendant?
7 THE COURT: The defendant is
8 contending that you were negligent.
9 MS. SCOTTO: But they are also
10 contending that plaintiff caused his own
11 accident, but then when you went on to talking
12 about burden of proof you said I had the burden
13 of proving.
15 THE COURT: With regard to
16 apportionment, I will charge 2:275 since I did
17 not realize I had failed to charge that as
18 requested. But in that apportionment charge, I
19 will indicate as the charge reads, If you find
20 defendant, third-party defendant and plaintiff
21 are at fault, you must decide -- if you find
22 defendant and/or the third-party defendant
23 and/or the plaintiff are at fault, you must
24 decide what part of the fault each bears and
25 then I finish the balance of that charge.

1366
Proceedings
1 MR. DURST: Of course.
2 THE COURT: All right, that's how we
3 are fixing, although I don't think there is any
4 misunderstanding and I did explain to the
5 jurors as we review the verdict sheet it will
6 become clear.
7 MS. SCOTTO: There is a couple other
8 issues as well.
9 THE COURT: With regard to what?
10 MS. SCOTTO: The charge.
11 THE COURT: I'm going to finish the
12 charge right now. I'm going to give them the
13 verdict sheet to read along, and then we will
14 take this up after I have done that. These are
15 objections to the charge?
16 MS. SCOTTO: Just a couple -- yes,
17 objections and something is missing.
18 THE COURT: That we will take up
19 later. We have wasted enough time. Let's go.
24 THE COURT: We did not forget about
25 you, we are bringing up the rear and it's very

1367
Proceedings
1 appropriate. Belmont Stakes are I think on
2 Saturday. Anyway, some of you may follow the
3 horses, but some of you may not.
4 Okay, ladies and gentlemen, please
5 forgive me. I inadvertently ommitted a
6 particular charge so let me give you that
7 charge.
8 If you find that the defendant and/or
9 the third-party defendant and/or the plaintiff
10 are at fault, you must decide what part of the
11 total fault each bears. In making that
12 determination, you must weigh the degree of
13 fault of each party you find negligent. Once
14 you have argued all of the facts and issues you
15 will decide what is a fair division of the
16 responsibility of each party for causing the
17 accident. In your verdict, as I stated before,
18 you will state the percentage of fault of each
19 party and the total of these must equal
20 100 percent.
21 All right. You will decide what you
22 will apportion, whatever that amount is, if
23 any, that will be a decision that you will
24 make. All right, ladies and gentlemen. Okay.
25 As I indicated to you earlier with

1368
Proceedings
1 regard to stipulations, there has been a
2 stipulation that has been agreed to by the
3 parties and that stipulation is as follows:
4 That with regard to past medical expenses
5 already incurred -- strike that.
6 With regard to past medical expenses,
7 the amount of $18,183 is a past medical expense
8 incurred by the plaintiff. The Court has
9 already included that amount in the verdict
10 sheet. So when you get the verdict sheet you
11 will see that there is an amount of $18,183
12 which the parties have stipulated represents
13 past medical expenses of the plaintiff.
14 Now, this means that there is no
15 dispute as to that fact and that that fact has
16 been established for the purpose of this case.
17 You must consider the agreed facts along with
18 all of the other evidence presented and give
19 the agreed facts such weight as you find is
20 appropriate. You will remember that that fact,
21 as I say, was stipulated and agreed to by the
22 parties.
23 All right, everyone?
25 Now, the case will be decided by you

1369
Proceedings
1 on the basis of certain questions -- strike
2 that -- on the basis of answers that you will
3 give to certain questions which I'm about to
4 give to you. Each of the questions asked calls
5 for an appropriate answer, yes, no, a numerical
6 figure or a percentage.
7 Now, while it is important that the
8 views of all of you six jurors be considered,
9 five of the six of you must agree upon on the
10 answer to any particular question. But the
11 same five need not agree on all of the answers.
12 That will become clear as I go through the
13 verdict sheet with you, ladies and gentlemen.
14 So that when five of you have agreed on any
15 answer, the foreperson of the jury will write
16 the answer in the space provided for each
17 answer.
18 When all of you have answered all the
19 questions that require answers, you will report
20 to the Court. Now, do not assume from the
21 questions or from the wording of the questions
22 or from my instructions on them what the
23 answers should be. All right, ladies and
24 gentlemen, let's go through them.

1370
Proceedings
1 Each and every one of you in the box, including
2 Mr. Caputo, we don't want to you feel left out,
3 Mr. Caputo, has a copy of the verdict sheet.
4 Let me just explain, however, when the six of
5 you retire to the jury room for your
6 deliberations, each one of you will have in
7 hand a copy of the verdict sheet. This is to
8 facilitate your deliberations, however, the
9 verdict sheet must be filled out by the
10 foreperson, that is Mr. Hira.
11 Each one of you will have a copy that
12 you will utilize to keep track of the questions
13 as you progress in your deliberations, but only
14 one verdict sheet will be marked and that
15 verdict sheet will be marked by Mr. Hira.
18 THE COURT: Let's go to question No.
19 1.
20 Question No. 1, did defendant
21 National Equipment Corporation distribute the
22 dough mixer involved in this occurrence? So
23 Mr. Hira you will fill out the verdict sheet
24 and you will respond either yes or no and then
25 you will indicate what the vote is. It's

1371
Proceedings
1 either going to be unanimous or it will be five
2 to one. As you see, ladies and gentlemen,
3 there is no entry there on any of those lines
4 for four to two. So if the vote is four to
5 two, that means you need to keep on
6 deliberating with regard to that particular
7 question. It can only be a vote -- a unanimous
8 vote, six/zip, or five to one. If your answer
9 is no, do not proceed any further, stop and
10 report your verdict to the court.
11 If your answer is yes, proceed to
12 Question No. 2. You do not proceed to Question
13 No. 2 unless your answer to question one is
14 yes.
15 Ladies and gentlemen, I want you to
16 understand that you need to follow very clearly
17 the instructions on the verdict sheet after
18 each question. I do not want anyone jumping
19 from one page to the last page as you are doing
20 now, unless you have followed the questions in
21 their proper order and unless you have followed
22 the specific instructions on the verdict sheet.
23 I know this may seem a little complicated
24 because I know it seems complicated to me and I
25 have done many of these, so I can understand

1372
Proceedings
1 how you might find them complicated, but if you
2 follow the instructions on the verdict sheet it
3 should work out.
4 No. 2, Was the defendant's dough
5 mixer defective. Again, Mr. Hira you will take
6 a vote. You will answer the question yes or no
7 following the vote. It's either unanimous or
8 five to one. If your answer is no, do not
9 proceed any further, stop. You will report
10 your verdict to the Court. If your answer is
11 yes, proceed to Question No. 3. No one should
12 be turning the page yet, I'm not finished with
13 the instruction. They are there for a reason.
14 Do not proceed to Question 3 unless your answer
15 to Question 2 is yes.
16 No. 3, Did the defective condition
17 when the dough mixer left the possession of
18 National Equipment. Again yes or no and the
19 vote. If your answer is no, do not proceed any
20 further. Again, stop and report your verdict
21 to the Court. If your answer is yes, proceed
22 to Question 4. Again, do not go to Question 4
23 unless your answer to Question 3 is yes.
24 No. 4, Was the defect a substantial
25 factor in causing the plaintiff's injuries.

1373
Proceedings
1 Again, Mr. Hira, you will have a vote. Once
2 you've had your vote, then you will enter yes
3 or no based on the vote. If your answer is no,
4 do not proceed any further, stop and report
5 your verdict to the Court. If your answer is
6 yes, proceed to Question No. 5. Do not proceed
7 to Question 5 unless your answer to Question 4
8 is yes.
9 No. 5, Was the third-party defendant
10 Ferrara Foods and Confections negligent. Same
11 procedure, yes, no and the vote. If your
12 answer is no, proceed to Question No. 7. If
13 your answer is yes, proceed to Question No. 6.
14 Do not proceed to Question No. 6 unless your
15 answer to Question 5 is 7 -- I'm sorry, is yes.
17 Ferrara Foods and Confections' negligence a
18 substantial factor in causing the plaintiff's
19 injuries. Again, yes or no and the vote.
20 Proceed to Question No. 7.
21 Seven, were any of the key safety
22 feature or features of the dough mixer
23 substantially altered by third-party defendant,
24 Ferrara Foods. Yes or no and the vote. If
25 your answer is no, proceed to Question No. 9.

1374
Proceedings
1 If your answer is yes, proceed to Question No.
2 8.
3 Again, do not proceed to Question 8
4 unless your answer to Question 7 is yes. No.
5 8, was the substantial alteration made by
6 third-party defendant a substantial factor in
7 causing plaintiff's injury. The vote -- yes or
8 no and the vote. If your answer is no, proceed
9 to Question 9. If your answer is yes, do not
10 proceed any further. And you will stop and
11 report your verdict to the Court.
12 No. 9, Was the plaintiff's injury
13 caused by his misuse of defendant's product?
14 Again yes or no and the vote. You will proceed
15 to Question No. 10.
16 No. 10, Could the plaintiff by the
17 use of reasonable care have discovered the
18 defect and realized its danger. Again, yes or
19 no and the vote.
20 Question No. 11, Could the plaintiff
21 by use of reasonable care have avoided his
22 injury? Again yes or no and the vote.
23 Question No. 12, what is the
24 percentage of responsibility, if any, which is
25 chargeable to each party? There are three

1375
Proceedings
1 separate lines for the three parties involved
2 in the case. You will make whatever
3 appropriate -- you will make whatever is
4 appropriate in the line for the different
5 parties but the total, as I explained ladies
6 and gentlemen, must equal 100 percent. And
7 then of course your vote.
8 Let's proceed to damages. With
9 regard to damages, number one, State the
10 amounts awarded for the following items of
11 damages, if any, suffered by the plaintiff
12 Cirro Rodriguez from the date of the injury up
13 to the date of today's verdict. All right,
14 ladies and gentlemen?
15 So as you will note there are various
16 entries with their corresponding lines. Past
17 pain and suffering, if you choose to make an
18 award, that dollar amount and the vote.
19 Medical expenses, past medical expenses as I
20 indicated that's stipulated to by the parties
21 and that has already been entered. Lost
22 earnings, again, that's past lost earnings, the
23 dollar amount, and your vote. If you make no
24 award for a particular item you will write the
25 word "none" in the space employed.

1376
Proceedings
1 Proceed to the next question. State
2 the amounts, the award for the following item
3 of damages, if any, to be incurred by the
4 plaintiff Cirro Rodriguez in the future.
5 Future pain and suffering, dollar amount and
6 the vote. Medical expenses, dollar amount and
7 the vote. Rehabilitation expense, dollar
8 amount and the vote. Future impairment of
9 earnings ability, dollar amount and the vote.
10 If you make no award for a particular item, you
11 will write the word "none" in the space
12 provided.
13 Question No. 3, For any item of
14 future damages, if any, awarded in Question 2,
15 state the period of years for which such future
16 damages are intended to compensate the
17 plaintiff, Cirro Rodriguez. Future pain and
18 suffering, years and the vote. Future
19 impairment of earning ability, years and the
20 vote. And then there will be a line for each
21 of the jurors to sign, i.e., starting with
22 Mr. Hira and juror number one and so on, ladies
23 and gentlemen.
24 Let me just say, ladies and
25 gentlemen, that I just notice in looking at the

1377
Proceedings
1 verdict sheet that I inadvertently bolded
2 certain instruction. That was inadvertence on
3 my part, so you are to draw no inferences with
4 regard to any items in the instructions that
5 may be bold. That was my inexperience on the
6 computer. I still need a 12-year-old to teach
7 me computer skills and I'm working on that.
8 All right, ladies and gentlemen?
9 Now, in the course of your
10 deliberations, should your recollection of any
11 part of the testimony fail, you may have -- or
12 any question about my instructions to you on
13 the law, you have the right, ladies and
14 gentlemen, to return to the courtroom for the
15 purposes of having that testimony read to you
16 or such questions answered.
17 Now, let me just explain. Let me
18 show you, this is a blank jury note. As you
19 will see, there is an item at the very top that
20 says jury note number and that's a blank space.
21 Mr. Hira, to the extent that you are the
22 foreperson, it is going to be your
23 responsibility to fill out the jury notes.
24 Now, let me just suggest if you have the same
25 kind of penmanship that doctors have, you went

1378
Proceedings
1 to that same course that they take for
2 penmanship classes, then let me suggest that
3 you amongst yourselves, ladies and gentlemen,
4 decide who has the most legible handwriting to,
5 in the body of the note, indicate what your
6 questions are. All right?
7 If, Mr. Hira, if your penmanship is
8 not legible, then you will decide amongst
9 yourselves who has the most legible
10 handwriting. However, Mr. Hira, as the
11 foreperson you still need to fill out the
12 administrative portions of the note; that is,
13 what number it is, the time, your signature and
14 the date. Does everyone understand that?
15 Okay, you need to fill that out as the
16 foreperson.
17 Now, with regard to any questions
18 that you have, if you send out a jury note, and
19 the only thing on the jury note is that you
20 wish all of the evidence sent back to you,
21 that's the only question on the jury note,
22 counsel and the Court will not reconvene in the
23 courtroom for the purposes of having the
24 evidence sent into you. So any and all
25 evidence, whatever you want, just ask for it.

1379
Proceedings
1 Again, you must particularize what it is that
2 you want, we will not reconvene and you will
3 get it.
4 Now, if you have that question
5 together with another question that has nothing
6 to do with the items that have been received in
7 evidence, counsel and the Court will need to
8 reconvene for the purposes of responding to any
9 questions that you may have with regard to
10 testimony or with regard to my instructions to
11 you on the law.
12 Now, with regard to testimony, there
13 were a number of witnesses that we had
14 including testimony from witnesses in their
15 examinations before trial. We have also gone
16 through at least two or three court reporters.
17 So I know it may be rough, but as much as is
18 humanly possible by you, ladies and gentlemen,
19 if you can have the most detailed question with
20 regard to what it is that you either need read
21 back, for instance the name of the witness, the
22 particular subject area that that witness
23 testified about. If you can streamline it even
24 further as to which attorney was asking a
25 question or combination of all of the above.

1380
Proceedings
1 In other words, as detailed as you can be with
2 regard to the question, that will facilitate
3 our getting the answer to you back as soon as
4 possible.
5 Now, understand this, while it may be
6 easy for you to write down the question, it's
7 going to be a little more time-consuming for
8 the reporter to get it back to you, so please
9 do not believe that if you are behind the
10 closed door and you feel like it's taking more
11 than a New York minute to get it to you, now
12 you understand that our court reporters are
13 very, very good at what they do, but there are
14 thousands of pages that they need to sift
15 through to get it to you. But again, they'll
16 endeavor, the more detailed you are the better
17 it is for them to get to that quickly. All
18 right, everyone?
19 If during the time that you
20 deliberate you have an outstanding question
21 which we have not addressed and then you send
22 out a follow-up question or note indicating
23 that you have reached a verdict, we will not
24 consider that note unless we have read back
25 what you previously requested; or in the

1381
Proceedings
1 alternative, that note indicating that you have
2 reached a verdict indicates specifically that
3 you no longer wish any read back that you had
4 previously requested and had not obtained, that
5 you have in fact reached a verdict. Otherwise,
6 if the note simply says, "we have reached a
7 verdict" before we have read anything back to
8 you, we will read back to you, you will retire
9 once again and send out another note.
10 Is everyone clear on that? Okay.
11 (All nodded).
12 THE COURT: That's as far as the
13 notes are concerned. Again, as I said, while
14 it's important that the views of all jurors be
15 considered, a verdict of the five of the six of
16 you will be sufficient. Under the law whenever
17 five of your members are in agreement on the
18 verdict you may report your verdict to the
19 Court.
20 Now, at this point, I believe lunch
21 may have arrived already. And we're almost
22 there, ladies and gentlemen, okay. I promise
23 you. If anything isn't warm by the time you
24 are in there, I will be happy to microwave your
25 lunches for you because this is my fault that

1382
Proceedings
1 it's a little late.
2 But at this point, Mr. Caputo, you
3 will be given your lunch and you will be free
4 to either eat your lunch here on the premises
5 or. It's a beautiful day outside, you may
6 decide to take it home with you, as you wish.
7 That is your lunch and it is waiting for you,
8 Mr. Caputo. But as I said before, your
9 services were required, as we saw, as a
10 safeguard against the possibility, and in this
11 case the actual fact, that a regular juror was
12 incapable of completing their service.
13 So because you have been here
14 throughout from the very beginning until the
15 bitter end, Mr. Caputo, I wholeheartedly thank
16 you and I commend you for your faithful
17 attendance, patience and attention. And on
18 behalf of the Court and all of the parties, I
19 thank you, sir.
20 May I have counsel at side bar.
22 the side bar among the court and all counsel.)
24 inadvertently omitted to give you the names of
25 a few of the other experts, but your memory is

1383
Proceedings
1 probably much better than mine is at this
2 point. Dr. Visser, for the defendant, and
3 Dr. Paul for the plaintiff. And these were the
4 experts who testified with regard to their
5 expertise vis-a-vis the particular standards in
6 the industry at issue here. All right.
7 I misspoke, Mr. Rogel was an employee
8 of the third-party defendant at the time of the
9 accident and at the time when the litigation
10 began, all right.
11 What was that charge?
12 MS. SCOTTO: One:103.
13 THE COURT: Ladies and gentlemen, let
14 me just say that in this particular case jurors
15 are not to take notes, all right. If any of
16 you happen to have taken notes during the
17 course of the trial -- strike that.
18 Whether or not you took notes or not
19 you should be aware that the court reporters
20 record everything stated in the courtroom and
21 any portion the transcript at your request will
22 be read black to you during your deliberations.
23 If you do not take notes during the trial you
24 should not -- strike that.
25 If any of you do take notes during

1384
Proceedings
1 the trial, those notes are only for your
2 personal use and are simply an aid to your
3 memory. Because the notes may be inaccurate or
4 incomplete, they may not be given any greater
5 weight than your independent recollection.
6 Because the notes may be inaccurate or
7 incomplete, they may not be given any greater
8 weight or influence than the recollection of
9 other jurors about the facts or the conclusions
10 to be drawn from the facts in determining the
11 outcome of the case.
12 Those of you who -- strike that.
13 Those of you who do not take notes
14 should rely on your independent recollection of
15 the evidence and not be influenced by the fact
16 that another juror may have taken notes. Any
17 difference between a juror's recollection and a
18 juror's notes should always be settled by
19 asking to have the court reporter's transcript
20 on that point read back to you.
21 The court transcript should govern
22 your determination rather than a juror's notes.
23 A juror's notes are not a substitute for the
24 official record or for the governing principles
25 that I have given to you.

1385
Proceedings
3 THE COURT: Now, ladies and
4 gentlemen, let me just ask you. There was a
5 point in time when I stepped into the robing
6 room by myself, having you in the box and all
7 the attorneys and all other personnel in the
8 courtroom itself.
9 Now, I think I heard the jurors
10 laughing out here. Was there something said by
11 anyone that tickled your funny bone and I may
12 have lost a really good joke or some comment?
13 Ladies and gentlemen, especially those of you
14 sitting in the front, was there a comment made
15 by anyone that I might have missed?
16 (All shook heads no.)
17 THE COURT: Nothing? I thought I
18 heard you guys having fun out here without me
19 and I just was inquiring. Okay.
20 Ladies and gentlemen, now that I have
21 outlined for you the rules of law that apply to
22 the case and the processes by which you weigh
23 the evidence and decide the facts, in a few
24 minutes you will retire to the jury room for
25 your deliberations. Now, let me just say,

1386
Proceedings
1 ladies and gentlemen, we are about to -- and we
2 have gone way past our lunch on hour. We will
3 be taking our luncheon recess as soon as I am
4 concluded with this last charge.
5 So, let me just say if you decide
6 that you will deliberate during your luncheon
7 recess, you are free to do that. However,
8 understand if you knock on the door and the
9 only bright and shiny face you see is Officer
10 Guzman, understand if you give him a note, he
11 will be very smiling and amenable to receiving
12 it, but we will not reconvene during our
13 luncheon recess. However, we will take that
14 note and be happy to address it as soon as we
15 return from our luncheon recess.
16 If you decide to continue your
17 deliberations during lunch, you are free to do
18 so, all right, everyone? Now, in order for
19 your deliberations to proceed in an orderly
20 fashion, you have your foreperson, Mr. Hira, of
21 course, his vote is entitled to no greater
22 weight than that of any of the other jurors.
23 Your function to reach a fair conclusion from
24 the law and evidence is, as we say, an
25 important one. When you are in the jury room,

1387
Proceedings
1 I do know that you will, in fact, listen to
2 each other and discuss the evidence and the
3 issues in the case amongst yourselves.
4 It is the duty of each of you as
5 jurors to consult with one another and to
6 deliberate with a view of reaching agreement on
7 a verdict, if you can do so, without violating
8 your individual judgment or your conscience.
9 While you should not surrender conscientious
10 convictions of what the truth is and of what
11 the weight and affect of the evidence and while
12 each of you must decide the case for yourself
13 and not merely consent to the decision of your
14 fellow jurors, you should examine the issues
15 and the evidence before you with candor and
16 frankness and with proper respect for and
17 regard for the opinions of each other, as I
18 know you already have.
19 Remember in your deliberations that
20 the dispute amongst the parties is for them an
21 important matter. They and the Court rely upon
22 you to give full and conscientious deliberation
23 and consideration to the issues and evidence
24 before you. By so doing, you carry out to the
25 fullest your oath as jurors to truly try the

1388
Proceedings
1 issues of the case and render a true verdict.
2 That being said, ladies and
3 gentlemen, enjoy your lunch. We will be
4 reconvening here in about an hour or so and any
5 questions that you may have we will be glad to
6 address those questions. So ladies and
7 gentlemen, Mr. Caputo once again, thank you
8 very much for your attention and dedication,
9 ladies and gentlemen. The rest of you, thank
10 you so much in advance for your dedication and
11 your patience and now for the hard work that
12 you are here to perform. Thank you so much
13 each and every one. And now, ladies and
14 gentlemen, you may discuss the case as much as
15 you like. Thank you all.
18 takes place on the record, at the side bar,
19 in the presence of the Court and all
21 jury.)
22 MS. SCOTTO: Your Honor, I had
23 requested that you make an addition to your
24 charge, because you charged the jury and you
25 told them that Miguel Rogel was an employee of

1389
Proceedings
1 Ferrara at the time of his deposition and he
2 was not. And I requested that you change that
3 and what you said to them was he was an
4 employee at the time the litigation commenced,
5 but you did not correct the earlier statement.
6 THE COURT: Well, if that's not a
7 correction, then I don't know what is.
8 MS. SCOTTO: I think you needed to
9 say I made an error before when I said he was
10 employed at the time of the deposition. He was
11 an employee at an earlier time, at the time of
12 the accident, but not at the time of the
13 deposition. I don't believe it's clear.
15 MS. COTTER: When will we make the
16 Margo letters court exhibits?
17 THE COURT: We are going to go to
18 lunch. As I said, I do that as a rule after we
19 are done. So everything will be, I promise
20 you, all of the EBT's, all of the marked
21 pleadings, everything that I have here, all of
22 the letters that I have withdrawn from
23 consideration, everything will be a court
24 exhibit.
25 MS. SCOTTO: Your Honor, I do have

1390
Proceedings
1 one other issue. When you stepped in the
2 robing room before and you left us in the
3 courtroom with the jurors in the box, Mr. Durst
4 turned towards the jurors, I heard him say
5 something, what I don't know.
6 MS. COTTER: I heard it as well.
7 MS. SCOTTO: And then Mr. Durst and
8 the jurors in the front row started to laugh.
9 And I stopped Mr. Durst at the time and said,
10 Did you say anything? He said, No, no, I
11 didn't say anything to the jurors. But I heard
12 something.
14 MR. DURST: I think she misheard. I
15 didn't say a word, your Honor.
16 THE COURT: All right, as you recall,
17 that it is precisely the reason we had this off
18 the record in the robing room when you were
19 discussing other matters. I tried to make
20 light, which is why I asked them if they had --
21 if something was said by anyone that tickled
22 their funny bone that I missed.
23 The jurors -- none of the jurors
24 indicated that that was the case. Jurors in
25 the front shook their heads in the negative,

1391
Proceedings
1 and so I could only rely on what the jurors
2 tell me. So I was not here. I did not hear
3 anything. None of the court personnel that was
4 present in the courtroom heard anything. And
5 none of the jurors who were present in the box
6 indicated that they -- that anyone said
7 anything. So that's where we stand with that,
8 okay.
9 Anything further before we go to
10 lunch?
11 MR. DURST: No.
12 MS. COTTER: No.
13 MS. SCOTTO: No.
14 THE COURT: I'm going to ask, it is
15 now almost 1:30. We will be back from lunch at
16 2:30. And I'm going to ask you because of the
17 configuration of the courtroom, we share -- the
18 court itself shares a contiguous wall with the
19 jury room. Everyone is to wait outside in the
20 hall, in the public halls because this is a
21 courtroom where even if you were in the
22 anteroom of the courtroom, you would
23 nonetheless be able to hear what the jurors are
24 doing and saying in the jury room. So to avoid
25 that I'm going to ask everyone to wait outside,

1392
Proceedings
1 to be back within the hour in the event that
2 there is a note from the jurors. All right.
5 p.m.)
8 (Jurors entered the courtroom at 4:40
9 p.m.)
10 THE COURT: Have a seat, ladies and
11 gentlemen. All right, ladies and gentlemen,
12 let me just say thank you for your services
13 today and -- you keep laughing over there. I
14 see you laughing -- but there is going to be a
15 test where you guys sit and how you file in and
16 out.
17 Ladies and gentlemen, I want to thank
18 you for your services today. We are at the end
19 of business day today and I know you have yet
20 to reach a verdict. So I'm go to ask you to
21 cease your deliberation at this time. I'm
22 going to ask you to be back here Monday morning
23 at 10 o'clock in the morning. All right,
24 everyone. And you will resume your
25 deliberations.
1393
Proceedings
1 As I explained to you earlier today,
2 I do have a calendar on Monday that has nothing
3 to do with this case. As I explained, that
4 calendar will be conducted here in the
5 courtroom. So if you walk in on Monday morning
6 and you see all these strange people that you
7 never saw before, pay no attention to them.
8 Just go straight back into the jury room and
9 you will continue with your deliberations. All
10 right, you will be behind closed doors. We
11 will be dealing with whatever matters the Court
12 and counsel on those matters have to deal with
13 here in the courtroom and you will continue
14 your deliberations.
15 Notwithstanding the fact that the
16 Court has calendar call Monday morning, again,
17 what takes priority now is your deliberations.
18 If you have any questions or if you have any
19 notes that you need to send out, or whatever
20 your requests are, I will cease what is going
21 on in the courtroom with regard to my calendar
22 and I will address whatever issues you may have
23 in the form of notes, or whatever it may be.
24 All right, ladies and gentlemen, so
25 you will be operating as if I did not have a

1394
Proceedings
1 calendar call. All right, everyone? So that
2 being said, I'm going to say to you all, I
3 would like you all to have a nice restful
4 weekend. All right, everyone? It's supposed
5 to be miserable tomorrow, so hopefully some of
6 you might get to sleep a little late tomorrow
7 and recuperate. And you can let your hair down
8 this evening and relax this evening. Stay up
9 late, watch whatever amount of TV you want to
10 watch tonight, ladies and gentlemen. And
11 likewise on Sunday I'm going to ask you to all
12 get a good night's rest.
13 Obviously now, ladies and gentlemen,
14 there is no designated hitter amongst you. So
15 I am going to ask you all to be very safe, take
16 care of yourselves, not that I wouldn't want
17 you to take care of yourselves otherwise, but
18 please now more than ever, make sure that you
19 are very safe. Get in and out of your home
20 safely, no one walk under any ladders or let
21 any black cats run across your path. All
22 right, everyone?
23 I want see you all back here bright
24 and early Monday morning at 10 a.m. and, of
25 course, obviously now more than ever now that

1395
Proceedings
1 you have commenced your deliberations please,
2 please, please, maybe a serious burden placed
3 upon you by your family members who believe you
4 my be concluded with the case and may want to
5 have first dibs on what you do, please, please,
6 please resist that temptation. Do not discuss
7 this case either amongst yourselves or with
8 anyone else.
9 I know that you are Bronx jurors and
10 you will follow those admonitions very
11 carefully. Do not discuss it amongst yourself
12 or with anyone else or don't allow anyone to
13 discuss it with you in your presence. If
14 anyone does try to discuss it in your presence
15 bring it to my immediate attention.
16 First thing Monday. And obviously we
17 will not go to the area in question. All
18 right, everyone? And is there anything that I
19 have forgotten? Now you all know the charge by
20 heart. Don't go to the area in question. I
21 think that's pretty much it, ladies and
22 gentlemen. Okay. Have a good weekend, enjoy
23 yourselves, relax, have a fabulous time. Come
24 back to us bright and early Monday morning at
25 10 o'clock and we will see you then. Have a

1396
Proceedings
1 good weekend all. Thanks so much.
3 THE COURT: Counsel, we are in recess
4 until Monday 10 o'clock.
6 case adjourned to Monday, June 7, 2004 at
7 10:00 a.m.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1397

2 ----------------------------------------X
CIRRO RODRIGUEZ,
3
Plaintiff,
4 Index No.
-against-
5 16482/95
7 Defendant.
----------------------------------------X
Index No.
10 -against- 16482/95
----------------------------------------X
13
851 Grand Concourse
June 7, 2004
15
B E F O R E:
16
18
19
20 -------------------------------------------------
24 good morning. Actually, good afternoon. Have
25 a seat, everyone.
1398
Proceedings
1 All right, ladies and gentlemen, we
2 have had jury note number one, which was signed
3 by Mr. Hira at 11:10 this morning. It
4 indicates, quote "Have come to our verdict."
5 I've also gotten your verdict sheet and in
6 reviewing your verdict sheet, I find that there
7 is an inconsistency in your verdict sheet; to
8 wit, at No. 8, the question was, Was the
9 substantial alteration made by third-party
10 defendant a substantial factor in causing
11 plaintiff's injury.
12 The answer that was recorded by
13 Mr. Hira was yes. The vote recorded by
14 Mr. Hero unanimous, six to zero. If you were
15 following the instructions on the question, you
16 would note that the instruction indicated as
17 follows: "If your answer is no, proceed to
18 Question No. 9. If your answer is yes, do not
19 proceed any further, stop and report your
20 verdict to the Court."
21 You proceeded thereafter by answering
22 the balance of the questions starting with No.
23 9, continuing on and answering the questions in
24 the damages portion of the verdict sheet.
25 Therefore, this is an inconsistent verdict.

1399
Proceedings
1 You proceeded as if you had answered yes, not
2 as if -- I'm sorry, as if you have answered no,
3 not as if you had answered yes. So I cannot
4 take this particular verdict sheet the way you
5 have sent it out to the Court. That being the
6 case, I am going to give you a blank verdict
7 sheet and I'm going to ask you to retire for
8 your further deliberation based upon the
9 inconsistency in the verdict sheet.
10 All, right, ladies and gentlemen, if
11 you would please follow Officer Guzman into the
12 jury room.
14 THE COURT: Counsel, I'm going to ask
15 you to retire once again outside so that the
16 jurors can continue deliberations.
17 Wait for me outside.
18 MS. SCOTTO: I would like to put
19 something on the record.
20 THE COURT: Just wait for me outside
21 a moment, please. Actually, you can go into
22 the robing room.

1400
Proceedings
2 jury.)
4 outside the hearing of the jurors. Counsel and
5 the Court are present.
6 MS. SCOTTO: Your Honor, I had asked
7 to speak with you. When the jurors came back
8 in, Mr. Durst turned to face them and he was
9 smiling at them and then he was shaking his
10 head looking at Mr. Steel.
11 MS. COTTER: I saw it as well.
12 THE COURT: Mister who?
13 MS. SCOTTO: Mr. Steel, juror number
14 two. It's totally inappropriate. Based upon
15 the comments that he has made and facial
16 expressions that he has made, I would ask for a
17 mistrial on that basis.
19 MR. DURST: Judge, I don't understand
20 that. I'm not communicating with the jury in
21 any fashion. I'm just sitting there. She sees
22 things that I think are in her imagination
23 entirely.
24 MS. SCOTTO: I'm not that creative.
25 MR. DURST: I don't know how I could

1401
Proceedings
1 be -- I just don't get that.
2 MS. SCOTTO: Mrs. Cotter saw it as
3 well.
4 THE COURT: At this point I did not
5 see anything that counsel is referring to. I
6 was looking at the jurors. I was looking at
7 the verdict sheet. I see no reason to declare
8 a mistrial at this stage so that application is
9 denied. All right.
10 If you would please, if you would
11 just wait outside again.
12 (Recess taken.)
17 jury.)
18 THE COURT: Who wanted to put
19 something on the record? We are in the robing
20 room outside the hearing of the jurors.
21 MS. COTTER: I just want to put on
22 the record based upon inconsistency in the
23 verdict being that the jurors obviously
24 finished liability deliberations, I would ask
25 either that you disregard the second half of

1402
Proceedings
1 the jury verdict sheet that they weren't
2 supposed to go to or a mistrial based upon the
3 inconsistency.
4 MS. SCOTTO: I join in that request.
5 THE COURT: That application is
6 wholeheartedly denied. There is an
7 inconsistency. They had the opportunity to
8 either change that from yes to no and not award
9 damages and stop where they were supposed to
10 have stopped or change the answer to Question 8
11 and then proceed to answer the questions with
12 regard to damages. That is their prerogative.
13 So no, I'm not going to declare a
14 mistrial. And while I'm at it, with regard to
15 whether or not Mr. Durst smiled at the jurors
16 or did not smile at the jurors, let me just say
17 this. All three of you are not required to sit
18 stone faced in the courtroom not acknowledging
19 the presence of the jury.
20 Frankly, I'm surprised because most
21 of you as trial attorneys should know that it's
22 part of your job to make sure that the jury is
23 making eye contact with you, since after all,
24 subliminally that's the message that you are
25 conveying to the jurors that you want them to

1403
Proceedings
1 make eye contact because you want to know what
2 they are thinking or not thinking if you can
3 change it.
4 So no, I'm not declaring a mistrial
5 because Mr. Durst had smiled at them.
6 MS. SCOTTO: He was more than
7 smiling. He was shaking his head no.
8 THE COURT: I did not see that. I
9 did not hear him say anything. When I asked
10 the jurors last week in response to your
11 request that I inquire as to whether Mr. Durst
12 had said something that caused them to laugh or
13 whatever, they did not indicate that that was
14 the case.
15 So I can only go by what the jurors
16 have said when I've asked them -- and thus far
17 the jurors have been very forthcoming with the
18 Court in all respects -- and go by what I may
19 have observed in the courtroom myself. I have
20 not other observed any of the conduct that you
21 are referring to. So on that note, I am not
22 declaring a mistrial.
23 All right, let's see what the jurors
24 have done. They have reached a verdict.

1404
Proceedings
6 have a seat.
7 All right, ladies and gentlemen, I
8 have a follow-up note, jury note number two,
9 signed by Mr. Hira recorded at 12 noon.
10 All right. Mr. Hira. I understand
11 from this note you have reached a verdict; is
12 that correct, sir?
13 THE FOREMAN: Yes, your Honor.
14 THE COURT: Would you please stand,
15 sir?
16 COURT CLERK: I would read the
17 questions you were given on the verdict sheet.
18 Please answer yes or no and the vote which it
19 was reached upon.
20 To the first question, Did the
21 defendant National Equipment Corporation
22 distribute the dough mixer involved in the
23 occurrence?
24 THE FOREMAN: Yes.
25 COURT CLERK: By vote of?

1405
Proceedings
1 THE FOREMAN: Six-zero.
2 COURT CLERK: Number two, Was
3 defendant's dough mixer defective?
4 THE FOREMAN: Yes.
5 COURT CLERK: Vote of?
6 THE FOREMAN: Five to one.
7 COURT CLERK: The dissenting juror,
8 please, number?
9 THE FOREMAN: Number six.
10 COURT CLERK: Thank you.
11 Question No. 3, Did the defect exist
12 when the dough mixer left the possession of
13 National Equipment?
15 COURT CLERK: At a vote of?
16 THE FOREMAN: Five to one.
17 COURT CLERK: Dissenting juror?
18 THE FOREMAN: Number six.
20 No. 4, Was the defendant a
21 substantial factor in causing the -- I'm sorry.
22 Was the defect a substantial factor in causing
23 plaintiff's injuries?
24 THE FOREMAN: Yes. Six to zero.

1406
Proceedings
2 Ferrara Foods and Confections negligent?
3 THE FOREMAN: Yes.
5 THE FOREMAN: Six to zero.
7 Turning to page 3, Was the
8 third-party defendant, Ferrara Foods and
9 Confections' negligence a substantial factor in
10 causing the plaintiff's injuries?
13 THE FOREMAN: Six to zero.
14 COURT CLERK: Question No. 7, Were
15 any of the key safety features of the dough
16 mixer substantially altered by the third-party
17 defendant Ferrara Foods?
18 THE FOREMAN: Yes. Six zero.
19 COURT CLERK: By a vote of 6-0, thank
20 you.
21 No. 8, was the substantial alteration
22 made by third-party defendant a substantial
23 factor in causing plaintiff's injury?
24 THE FOREMAN: Yes, 6-0.
25 COURT CLERK: Thank you very much.

1407
Proceedings
2 gentlemen, your verdict now completes your
3 service in the case and on behalf of the
4 judicial system of the State of New York, I
5 thank you for your service.
6 Before you leave the courtroom,
7 however, I want to inform you that you do not
8 have to answer questions about the case put to
9 you by anyone other than me. The public
10 interest requires that jurors have the utmost
11 freedom that they may in the jury room and that
12 each of you be free to express your views
13 without fear of what others might think.
14 Although you are not required to maintain
15 secrecy about what occurred in the jury room,
16 you should keep in mind your own best interests
17 as jurors before discussing the case with
18 anyone or answering any questions about it.
19 So ladies and gentlemen, now that
20 your verdict is in, that completes your
21 service. Thank you very much. If you will
22 follow the court officer into the jury room one
23 last time, I will take a moment to personally
24 thank each one of you. The attorneys if they
25 wish to consult with you will do so outside of

1408
Proceedings
1 the courtroom as we are now in recess with this
2 case.
3 So any attorneys, if you would,
4 please wait outside for the jurors.
6 THE COURT: All right, we are back in
7 the courtroom the jurors have now left. Did
8 someone want to make a record with regard to
9 anything?
10 MR. DURST: Sure, I will.
11 First I would like to thank the Court
12 for its time and patience on this case.
13 Naturally, I would move for a judgment.
14 Notwithstanding the verdict, it's clear to me
15 that the jury misunderstood, as I projected
16 they would, those two questions. The answer to
17 those two questions was clearly subsumed within
18 the answers to questions three and four. And
19 the law is certainly not that any key safety
20 feature that is substantially altered gets the
21 defendant off the hook. Has to be the safety
22 feature that was the sole -- you have to find
23 that the sole proximate cause of the accident
24 was the removal of the key safety feature.
25 That's why I objected to those questions all

1409
Proceedings
1 along and it's clear that the jury in making
2 its conclusion was merely articulating what it
3 was that Ferrara Foods had done that was
4 negligent.
5 And so I would ask for a judgment
6 notwithstanding the verdict. And certainly, if
7 the Court is not predisposed towards that, ask
8 for a new trial because of the inconsistency,
9 the obvious jury confusion created by those two
10 incorrect statements of law in the question
11 sheet.
12 MS. COTTER: Your Honor, obviously I
13 would oppose Mr. Durst's application. I don't
14 think I have seen a case where there was
15 clearer substantial alteration by the employer,
16 third-party defendant Ferrara Foods, which was
17 argued in detail on my motion for a directed
18 verdict in this case. So I would oppose all of
19 that application and ask the Court to allow the
20 decision, the verdict, to stand as it is.
21 MS. SCOTTO: Your Honor, I would also
22 oppose plaintiff's application. Those
23 questions that the Court included in the
24 verdict sheet were clearly in line with the
25 case of Robinson and were appropriate. And I

1410
Proceedings
1 would ask that the verdict be permitted to
2 stand.
3 THE COURT: With regard to your
4 motion, Mr. Durst, I do not take these motions
5 as oral applications. I require all motions to
6 be made in writing. And I require them to be
7 made in writing as per the time limitations of
8 the CPLR. So I believe you have 30 days to
9 file those motions.
11 THE COURT: Thank you all.
12 MR. DURST: Your Honor, is it
13 possible for us to see the first verdict sheet?
14 THE COURT: No.
15 MR. DURST: Well, I mean, it is going
16 to be preserved; am I correct?
17 THE COURT: I'm not sure that I am
18 required to do that.
19 MR. DURST: Your Honor, I would ask
20 that it be preserved.
21 THE COURT: That application will be
22 considered by the Court.
23 MR. DURST: I think it's a key issue
24 in this case to show the inconsistency and if
25 it was in any way destroyed or discarded, I

1411
Proceedings
1 would be very surprised. And I personally
2 think I'm entitled to see it as part of my
3 motion. I would like to include what it was
4 that they did in the first verdict sheet.
6 (Court adjourned.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2 ----------------------------------------X
CIRRO RODRIGUEZ,
3
Plaintiff,
4 Index No.
-against-
5 16482/95
7 Defendant.
----------------------------------------X
9 Plaintiff,
10 -against-
12 Defendant.
----------------------------------------X
13
851 Grand Concourse
June 14, 2004
15
B E F O R E:
16
HON. NORMA RUIZ, JSC
17
18
FOR THE PLAINTIFF
19 JOHN E. DURST, JR., ESQ.
285 Broadway
20 New York, New York 10007
21
FOR THE DEFENDANT
22 National Equipment Corporation
EUSTACE & MARQUEZ, ESQS.
23 1311 Mamaroneck Avenue
White Plains, New York 10605
24 BY: EDWARD M. EUSTACE, ESQ.
JOHN R. MARQUEZ, ESQ.
25 KENNETH L. GRESHAM, ESQ.
1 A P P E A R A N C E S: (continued)
2
FOR THE DEFENDANT
3 Ferrara Foods, Inc.
NEWMAN, FITCH, ALTHEIM & MYERS, P.C.
4 14 Wall Street
5 BY: FRANCINE SCOTTO, ESQ.
MICHAEL ZHU, ESQ.
6
7 ELLEN RUBIN, RPR

8
----------------------------------------------
9
10 THE COURT: Okay, who is here for --
11 why don't I have the appearances of everyone.
12 MR. DURST: John Durst, Jr., for the
13 plaintiff, Cirro Rodriguez.
14 MR. EUSTACE: Edward Eustace for
15 defendant/third-party plaintiff, National
16 Equipment Corp.
17 MS. SCOTTO: Francine Scotto for the
18 third-party defendant, Ferrara Foods.
19 THE COURT: Okay, good afternoon.
20 MS. SCOTTO: Good afternoon, your
21 Honor.
22 THE COURT: Ms. Cotter, I take it, is
23 on maternity leave at this point?
24 MR. EUSTACE: That's correct, your
25 Honor.
1414
Proceedings
1 THE COURT: So Mr. Eustace, you are
2 here for Ms. Cotter?
3 MR. EUSTACE: Yes.
4 THE COURT: I have asked all counsel
5 to return on today's date because I am going to
6 enter judgment on the first verdict sheet that
7 the jurors rendered and I wanted you all to
8 have copy of that verdict sheet for any
9 post-trial motions that may be forthcoming.
10 And I'm going to distribute now to counsel the
11 original verdict sheet upon which I will be
12 entering judgment.
13 And just so the record is clear, the
14 Court inadvertently had the jurors come back
15 with a different verdict because the Court was
16 incorrect when it assumed that the jurors
17 misunderstood an instruction on the verdict
18 sheet. But as I indicated, I'm going to enter
19 judgment on the first verdict sheet which is,
20 in fact, the verdict sheet which Mr. Durst,
21 Ms. Cotter and Ms. Scotto worked with the Court
22 in preparing on at least two occasions. We
23 were in chambers when we worked on the verdict
24 sheet and then we were again in the robing room
25 working on the verdict sheet which was the

1415
Proceedings
1 ultimate verdict sheet that the jurors brought
2 into the jury room to render a verdict in.
3 MR. DURST: Your Honor?
4 THE COURT: Yes.
5 MR. DURST: Just for clarification,
6 would -- is the second verdict sheet the one
7 where they've awarded damages?
8 THE COURT: The first verdict sheet
9 is the verdict sheet that I'm entering judgment
10 on and that's the one that includes the
11 damages.
12 MR. DURST: Well, I didn't get a copy
13 of that. I got a copy of the other one.
14 Your Honor, never mind, I apologize.
15 I take that all back.
16 THE COURT: I think the copies that
17 you may have is not a legible copy.
18 MR. EUSTACE: Your Honor, could I get
19 some clarifications as to which is the document
20 that your Honor is referring to as being the
21 first verdict sheet?
22 THE COURT: The first verdict sheet
23 is the one that includes damages. The second
24 verdict sheet does not include damages.
25 MR. EUSTACE: Is that document the

1416
Proceedings
1 document which on page 6 does not have any
2 juror signatures on it?
3 COURT CLERK: As I just stated, I
4 photocopied the wrong one. I will be making
5 another one momentarily. That is a scratch
6 copy that I used.
7 MR. EUSTACE: What counsel has is a
8 scratch copy of the verdict sheet?
9 THE COURT: As my court clerk just
10 said to you, he incorrectly Xeroxed the wrong
11 verdict sheet. That was a scratch copy.
12 COURT CLERK: When I take a verdict,
13 I write down the numbers as I'm talking it.
14 That was actually my court clerk's copy when I
15 actually took the verdict. This is the
16 original one. I erroneously photocopied the
17 wrong one. I apologize. I will bring one back
18 in three minutes to you, if that.
19 MR. EUSTACE: It's hard to have
20 discussion until we --
21 COURT CLERK: The numbers on that are
22 absolutely correct.
23 MR. EUSTACE: The document that
24 counsel has, bear no signatures of jurors.
25 THE COURT: We will Xerox that and

1417
Proceedings
1 you will get a copy of the verdict sheet as
2 rendered by the jurors with their signatures on
3 the signature line, I believe that's page 6; is
4 that correct, that's the signature line?
5 MR. EUSTACE: That's where the
6 signature lines are, your Honor.
7 THE COURT: That's the copy that you
8 will be receiving momentarily.
9 MR. EUSTACE: I want to keep this.
10 THE COURT: That was not the jury's
11 verdict sheet so what my court clerk just gave
12 you initially was his scratch copy, as he
13 explained to you, that he was marking as his
14 own copy. So that was not something that the
15 jurors rendered. So that is not a court
16 exhibit.
17 Is that clear, Mr. Eustace?
18 MR. EUSTACE: Your Honor, on behalf
19 of National Equipment, because of the unusual
20 developments between the time the verdict was
21 entered on the day the jury was discharged and
22 today, I am asking that the Court mark as a
23 court exhibit the verdict sheet that your court
24 clerk handed out to each counsel at the
25 beginning of the record today. That does not

1418
Proceedings
1 bear any signatures by the jurors. It goes to
2 a chain of custody issue, it goes to --
3 THE COURT: That is not -- let me
4 explain again -- that was not the jurors'
5 verdict sheet.
6 The verdict sheet which the jurors
7 rendered for which there are signatures on the
8 sixth page you have before you now. That is
9 the verdict sheet that the jurors rendered, the
10 first verdict sheet.
11 MR. EUSTACE: Your Honor, this is so
12 irregular we have no alternative but to ask
13 that that sheet be marked as a court exhibit so
14 a reviewing court can see what has happened
15 here and I'm making that application right now,
16 your Honor.
17 THE COURT: Then the reviewing court
18 will understand that that was not touched by
19 the jurors, that court exhibit -- excuse me,
20 that verdict sheet which my court clerk
21 inadvertently Xeroxed, that was his scratch
22 copy that he generated. Just so the record is
23 very clear that is not touched by the jurors.
24 MR. EUSTACE: Your Honor, I
25 nevertheless would like this marked as a court

1419
Proceedings
1 exhibit.
2 MS. SCOTTO: Your Honor, I would join
3 that application.
4 THE COURT: I'm sure you do.
5 Well, we will mark that as a court
6 exhibit, but the record should be abundantly
7 clear that the verdict sheet which is signed by
8 the jurors is the verdict sheet that this Court
9 is entering judgment on.
10 MR. EUSTACE: Which verdict sheet is
11 this, your Honor? Weren't there two verdict
12 sheets signed by jurors?
13 THE COURT: I'm entering judgment on
14 the one that has their signatures on page 6
15 with damages. That is the verdict sheet, the
16 first verdict sheet, that I'm entering judgment
17 on.
18 MR. EUSTACE: I would just like to
19 state my position for the record, your Honor,
20 that with all due respect, the Court does not
21 have authority to that.
22 The jury did not affirm or announce
23 that verdict in open court, as a result of
24 which, counsel who tried the case had no
25 opportunity to poll the jury as to what your

1420
Proceedings
1 Honor called the verdict sheet.
2 Thirdly, the clerk of the court did
3 not enter that whatever was written on that
4 piece of paper, that you call the first verdict
5 sheet. Your Honor has no authority to enter a
6 verdict based on a piece of paper that was not
7 announced in open court; that the counsel
8 didn't have the right to poll the jurors as to;
9 and that the clerk of the court in accordance
10 with the CPLR did not enter into the minutes.
11 THE COURT: Ms. Scotto.
12 MS. SCOTTO: Your Honor, in addition
13 to Mr. Eustace's argument, there was a verdict
14 that was recorded and only one verdict can be
15 recorded. And I agree with Mr. Eustace that
16 the Court does not have authority to enter this
17 as the verdict.
18 THE COURT: There is no such thing --
19 were this a general verdict, perhaps there
20 would be polling of the jurors. There is no
21 longer a general verdict that's why we now have
22 interrogatories.
23 The verdict sheet that I say I am
24 entering judgment on, you have your appeals if
25 you wish, is the verdict sheet that the jurors

1421
Proceedings
1 indicated was their first verdict for which
2 there are signature lines on page 6, where the
3 damages portion is contained on page 5. That
4 is their verdict and that is the judgment that
5 I am entering. Okay?
6 So that is what I'm doing. You have
7 your appeal if you wish to appeal, as I'm sure
8 you will.
9 MR. EUSTACE: Your Honor, we are also
10 going to move to set aside the verdict.
11 THE COURT: That is not what we are
12 doing at this time. Have a seat, sir.
13 MR. EUSTACE: Your Honor, I would
14 like to make a motion to set aside the verdict.
15 THE COURT: Just have a seat, I'm not
16 done.
17 The purpose of this call of this case
18 was to apprise all of the attorneys that this
19 is the judgment that I'm entering judgment on,
20 this is the verdict that I'm entering judgment
21 on so that any post-trial motions that you will
22 be making will be based upon this verdict
23 sheet.
24 So I'm not taking any oral motions.
25 Any motion with regard to post-trial remedies

1422
Proceedings
1 will be contained in written motions, since I'm
2 sure Ms. Cotter would give you input on her
3 assessment of the circumstances of this trial.
4 MS. SCOTTO: Your Honor, I would like
5 to add to the record. I received a letter from
6 plaintiff's counsel that's dated June 8 of 2004
7 that was faxed to my office on June 10 and in
8 that letter -- I would like to have it marked
9 as a court exhibit.
10 THE COURT: This is a letter between
11 counsel; this has nothing to do with me.
12 MS. SCOTTO: Your Honor, if I may.
13 THE COURT: There was a call to my
14 chambers from your office on Thursday afternoon
15 with regard to letters. I had no letters
16 before me and nor was I interested in any
17 letters. So if you have any correspondence
18 between you, that's up to you.
19 MS. SCOTTO: Your Honor.
20 THE COURT: I have not looked at any
21 correspondence from anyone.
23 like to add, plaintiff's counsel acknowledges
24 that he spoke with the jurors, so at this point
25 the jury has been compromised and there is no

1423
Proceedings
1 way that the jurors could even be called back
2 here to report their verdict. The only verdict
3 that's reported was the one that was recorded
4 by the clerk. And I would like to have this
5 marked as a court exhibit to show that he did
6 speak with the jurors. And, in fact, we were
7 all instructed not to speak with the jurors.
8 THE COURT: I did not instruct anyone
9 not to speak with the jurors. I informed the
10 jurors it was their prerogative to speak with
11 counsel if they chose to.
12 MS. SCOTTO: Your Honor, on their way
13 out, Mr. Stone, your clerk, told us not to
14 speak with the jurors. They did not wish to
15 speak with us, to let them pass down the hall,
16 which is what I did.
17 THE COURT: If the jurors'
18 prerogative was that they did not have to speak
19 with you, if they chose not to that's their
20 prerogative.
21 MS. SCOTTO: I cannot imagine how
22 plaintiff's counsel was able to contact them
23 when we were called back into the courtroom
24 when we they left.
25 THE COURT: I can only be one place

1424
Proceedings
1 at one time. I was in the courtroom. I have
2 no idea what happened once the jurors left the
3 courtroom.
4 So if you wish that also to be made a
5 part of the court record, then let's make that
6 part of the court record as well. But the
7 record should be very clear that after -- would
8 you sit down, sir. Have a seat. Have a seat.
9 The record should be abundantly clear
10 that the jurors were informed by the Court that
11 if they chose not to speak with you, that was
12 their prerogative. If they wanted to speak
13 with you, that was their prerogative. So once
14 they left the courtroom and whether they
15 decided to speak with you or not speak with
16 you, again, that was their prerogative.
17 MR. GRESHAM: May I stand? I am on
18 the record. May I stand?
19 THE COURT: No, you are not on the
20 record. I decide who gets to speak and you are
21 not on the record.
22 Mr. Eustace is here from your office,
23 your partner. I'm only listening to one
24 attorney from each firm. If I were to allow
25 everyone then we would never get out of here.

1425
Proceedings
1 MR. GRESHAM: Note my objection.
2 THE COURT: What objection? You have
3 no objection here, sir.
4 MR. EUSTACE: Your Honor, I think you
5 can understand the situation that your Honor
6 has placed our office in and, more importantly,
7 our client in. The attorney who knew this case
8 like the back of her hand is not available
9 today, as your Honor well knows. Nevertheless,
10 we were called on a relatively rushed basis to
11 deal with some very important, complex issues
12 today. For that reason, in an effort to make
13 sure our client has the proper representation
14 at this session, I have asked my colleagues
15 from my office to participate in this argument.
16 THE COURT: You may ask whomever you
17 wish to participate.
18 MR. EUSTACE: The reason for that,
19 your Honor --
20 THE COURT: I decide who participates
21 in this.
22 MR. EUSTACE: Shouldn't the client
23 decide that, your Honor?
24 THE COURT: Your client had his day
25 in court.
1426
Proceedings
1 MR. EUSTACE: And still does, I hope.
2 THE COURT: This is now post trial,
3 and actually it's not even post trial because
4 this is as if we were here the day that the
5 verdict was rendered. This goes to your
6 post-trial motion practice.
7 So your client -- there is no --
8 there should be no concern for your client
9 being prejudiced at this time because I am
10 attempting to stave off any possible prejudice
11 by letting you know the verdict sheet that I am
12 utilizing with regard to this case. So your
13 client has not been prejudiced in the least.
14 I don't care how you wish to
15 characterize it. You may seek to characterize
16 it as prejudice, whatever you like. He is not
17 being prejudiced because I am affording you an
18 opportunity, Mr. Eustace, to see what it is
19 that I'm entering judgment on and I am
20 affording you an opportunity, Mr. Eustace, to
21 reach out to Ms. Cotter to engage her with
22 regard to potential post-trial motions as no
23 doubt you would have back then, meaning a week
24 ago, because I am sure that a week ago you
25 would have been conferring with her as well,

1427
Proceedings
1 since a week ago she would have been
2 anticipating the imminent birth of her child.
3 So you are in the same place as you
4 would have been a week ago with your attorney,
5 trial attorney, Ms. Cotter, who I guess you saw
6 no prejudice to your client sending in a woman
7 who was due any second now, I guess there was
8 no prejudice back then having her participate.
9 MR. EUSTACE: Your Honor, are you
10 implying that she didn't do a good job at
11 trial?
12 THE COURT: No, sir.
13 MR. EUSTACE: If that's the
14 implication I'm going to ask you to recuse
15 yourself.
16 THE COURT: Recuse myself from what,
17 sir?
18 MR. EUSTACE: What is the implication
19 of putting on the record that I saw no
20 prejudice asking Ms. Cotter to try the case?
21 THE COURT: Exactly. Had Mrs. Cotter
22 gone into labor, would that not have prejudiced
23 your client's case? We would have had to
24 declare a mistrial. You chose not to do that,
25 right?
1428
Proceedings
1 MR. EUSTACE: The scheduling of this
2 trial --
3 THE COURT: Instead, sir, what you
4 decided to do was have Ms. Cotter who, again,
5 was about to give birth at any moment, proceed
6 with the trial.
7 Could it have been, sir, that you
8 were hoping that that would have derived an
9 unfair benefit to your client because you had
10 an attorney who was pregnant here in court
11 appealing to the jurors both on the benefit of
12 your client and with regard to her particular
13 condition? So there is no prejudice to your
14 client, sir.
15 MR. EUSTACE: Your Honor, I hear
16 nothing but prejudice to my client.
17 THE COURT: Well, that is your
18 assessment.
19 MR. EUSTACE: I would like to be
20 heard, your Honor.
21 THE COURT: This is as I say, sir.
22 MR. EUSTACE: I would like to be
23 heard.
24 THE COURT: As I say.
25 MR. EUSTACE: Your Honor has just

1429
Proceedings
1 expressed an utter lack of neutrality as to the
2 parties, as to the attorneys. It is going to
3 be clear-cut in black and white as to whoever
4 reads this. I ask the Court to recuse herself
5 and that any statement you have made heretofore
6 be taken off the record, because your
7 expressions about Ms. Cotter's ability to try
8 her case are outrageous. They are absolutely
9 outrageous.
10 THE COURT: Did I impugn her ability
11 to try the case?
12 MR. EUSTACE: The implication is very
13 clear.
14 THE COURT: What is that implication
15 that you draw?
16 MR. EUSTACE: I can infer what I can.
17 THE COURT: You tell me what you
18 infer, because you seem to be telling me what
19 I'm impugning.
20 MR. EUSTACE: You just spent five
21 minutes, your Honor, telling me my strategies
22 and they were nothing of the sort. Ms. Cotter
23 is dedicated to this client.
24 THE COURT: She was --
25 MR. EUSTACE: She knew the case like

1430
Proceedings
1 the back of her hand. She appealed the case.
2 She read the briefs; she wrote the briefs. She
3 prepared with witnesses, with investigators.
4 She knew the case like the back of her hand.
5 It was her choice to try the case. And it was
6 your Honor's choice to allow the trial to take
7 as long as it did.
8 So the fact of the matter is for you
9 to sit up there and explain to me that there
10 was something funny about having Ms. Cotter try
11 the case is outrageous, and it really expresses
12 a lack of neutrality on your part on a case
13 where, if nothing else, neutrality is
14 absolutely demanded.
15 THE COURT: I'm glad you say that,
16 because I couldn't have been more impartial in
17 this particular case, Mr. Eustace. You were
18 not here every single day, Mr. Eustace. You
19 did not deal with the lengthy legal issues that
20 we took at side bar every single day because
21 the Court was endeavoring to make sure that we
22 had a fair and impartial case with regard to
23 all parties. All right?
24 You may have a seat now, sir.
25 MR. EUSTACE: Your Honor, in

1431
Proceedings
1 addition, I would like to state my objection to
2 this whole proceeding.
3 THE COURT: You may do that in your
4 post-trial motions.
5 MR. EUSTACE: No, I must state this
6 on the record because we may have to move
7 quickly on this.
8 We received a phone call, a rather
9 secretive one at that, advising us that this
10 verdict that was entered by the clerk, that was
11 announced in open court, that the attorneys had
12 the opportunity to poll the jury as to, was
13 somehow or other going to be affected.
14 And that's about the most we could
15 get out of the Court. It was a very secretive
16 telephone call, just have somebody there.
17 Well, can we have an idea what it is we are
18 going to be arguing? Can we have an idea what
19 the purposes of the appearance would be?
20 Ms. Roman, your Honor got onto the phone,
21 Mr. Stone, nobody would tell me. Nobody would
22 tell me.
23 I just for the life of me could not
24 understand the necessity for secrecy. What was
25 the Court in fear of? Why couldn't the Court

1432
Proceedings
1 have told us when we called up and as an
2 attorney representing a party, on a very high
3 stakes matter, asking for the Court's guidance
4 what is going to take place on Monday so we
5 could prepare? What in the world was the need
6 for secrecy? My assistant, my associate, my
7 partner, Mr. Gresham came to chambers. I'm
8 going to ask him to speak on the record.
9 THE COURT: No, sir. You may ask,
10 but, no. There is no need for any --
11 MR. EUSTACE: Then I will paraphrase
12 what he told me.
14 MR. EUSTACE: I don't want to go off
15 the record.
16 THE COURT: Stop the record.
18 MR. EUSTACE: Just let the record
19 reflect I have asked your Honor to keep
20 everything on the record in this case. And
21 your Honor did go off the record for a few
22 moments and told me that she could decide
23 what's on and what's off and I object to that
24 given the circumstances of this case. I think
25 everything should be on the record.

1433
Proceedings
1 That said, in addition to my phone
2 calls with your Honor, with Ms. Roman with
3 Mr. Stone where I for the life of me could not
4 get a straight answer as to what was going to
5 happen today, now that was Thursday, we had
6 time to prepare, we had time to go to the
7 appellate division. I don't know for the life
8 of me what the secrecy was, what the fear was
9 in telling us what it was you were going to do.
10 In addition to which, Mr. Gresham
11 from my office came to your Honor's chambers
12 and asked the very same questions and likewise
13 was not given a direct answer as to what the
14 appearance this afternoon was for. We show up
15 today at 2 o'clock. We wait for, you know, the
16 better part of an hour and then we get
17 blind-sided with this decision that was already
18 made without the benefit of any briefing from
19 counsel as I feel, in all sincerity, the Court
20 always wants to get some guidance as to very
21 important matters. But for some reason the
22 Court did not want any guidance on this.
23 It's as if the Court had a personal
24 viewpoint about the verdict. And I'm
25 unfortunately very fearful that plaintiff's

1434
Proceedings
1 counsel sent an improper letter and -- after he
2 improperly spoke to the jurors, too, your
3 Honor, which I'm going to ask to be marked as a
4 court exhibit -- and improperly influenced your
5 Honor where plaintiff's counsel in some -- I
6 couldn't think of a more uncontrolled setting
7 than this, supposedly out on the street, spoke
8 to these jurors after the verdict that was
9 entered was entered. And then has the temerity
10 to send a letter to the Court implying that the
11 verdict sheet had some kind of legal
12 significance when we all know it doesn't, that
13 that influenced your Honor.
14 It's mind boggling that the Court
15 would not want the assistance of counsel in
16 terms of briefing, in terms of memorandum of
17 law, before taking such a drastic step as was
18 taken today. We were blind-sided, quite
19 frankly, we were blind-sided. We asked three,
20 four, five, six different times what was going
21 to happen on Monday afternoon and it's as if we
22 didn't have the right to know.
23 It's as if Court said I say be here,
24 you just be here, without any type of
25 consideration for counsel and more importantly

1435
Proceedings
1 for the parties, to assist your Honor, to
2 assist your Honor's staff with some briefs,
3 with some case law, so that a decision like
4 this is made with proper consideration of the
5 law of the precedents.
6 I'm asking your Honor to reverse what
7 you said heretofore today. I don't understand
8 what the rush is in rushing us all in here to
9 change what you view as a verdict. I would ask
10 your Honor not to do that today. I think it's
11 improper. I think it's very prejudicial to the
12 parties who haven't had a chance to be heard
13 about this.
14 And I would ask you if that is your
15 sentiment, your Honor, if for some personal
16 reason or maybe some legal reason you feel that
17 that's something that you should do, you should
18 at least do it after a full record, after we
19 have all had the chance to review the minutes,
20 to see what the charge was, to see what the
21 verdict sheet was, correct or not, to see
22 whether or not they misunderstood the verdict
23 sheet as your Honor has concluded.
24 So that is my request to your Honor
25 that you do not enter any verdict other than

1436
Proceedings
1 the verdict that was entered last week and that
2 you maintain the status quo and allow us to
3 submit papers leading to your decision whether
4 or not to let the verdict stand or not.
5 Anything else is totally irregular, totally
6 unprecedented and prejudicial to all the
7 parties.
8 I would also ask, your Honor, that
9 this -- well, I make my application your Honor
10 that you do not alter the verdict that was
11 entered in open court and announced in open
12 court.
13 THE COURT: I have heard you.
14 Anything else from anyone else?
15 MR. EUSTACE: It's an application,
16 your Honor.
17 THE COURT: That's denied.
18 MR. EUSTACE: I would also like to
19 have marked as a court exhibit, if I may
20 approach, the letter dated June 8, authored by
21 Mr. Durst to your Honor, where he advises your
22 Honor something about a conversation with
23 jurors after the verdict was entered.
24 And it is my fear and my client's
25 fear that your Honor was unduly influenced by

1437
Proceedings
1 this improper letter.
2 Could we please have this marked for
3 evidence?
4 THE COURT: Do you have any
5 information whether this Court read this letter
6 before today? Do you have any information with
7 regard to that since you're suggesting that I
8 have been influenced? What is your
9 information?
10 MR. EUSTACE: I said I fear that.
11 THE COURT: I got you.
12 MR. EUSTACE: My information is
13 simply the way we operate under the law in New
14 York there is a presumption of regularity that
15 a letter sent is received and reviewed.
16 So based on that I'm assuming. I
17 would also say it was after the date of this
18 letter that we received a phone call to come in
19 under this cloak of secrecy and get blind-sided
20 by what happened today.
22 Anything else?
23 MR. EUSTACE: I would like to have
24 this marked as a court exhibit and this, for
25 the record, would be a letter dated June 8,

1438
Proceedings
1 2004, signed by Johnny Durst, Jr. to the
2 attention of Honorable Norma Ruiz.
3 THE COURT: Mrs. Scotto?
4 MS. SCOTTO: Yes, your Honor. I
5 would also join in Mr. Eustace's request to
6 have the Court not alter the verdict that was
7 rendered.
8 When the jury came back with the
9 first verdict sheet they were sent back to
10 deliberate again and we were told at a side bar
11 by the Court that the jurors went up to
12 Question No. 8 and then proceeded to damages,
13 that was my understanding. Yet the verdict
14 sheet that was presented today shows answers to
15 all the questions including damages. And we
16 did all ask to he to see the verdict sheet and
17 we were not permitted to see it at that time.
18 I would also ask, your Honor, you
19 said that all post-trial motions had to be made
20 on paper; is that correct?
21 THE COURT: That's correct.
22 MS. SCOTTO: Your Honor, could you
23 please tell me what the time frame is?
24 THE COURT: The statutory time
25 period.
1439
Proceedings
1 MS. SCOTTO: May we extend that time,
2 your Honor?
3 THE COURT: Why?
4 MS. SCOTTO: Because I would like to
5 purchase the transcript. You were going to
6 give plaintiff's counsel 30 days from the date
7 of the verdict.
8 THE COURT: At this point I believe
9 most counsel have most of the transcript since
10 it was gotten in bits and spurts.
11 MS. SCOTTO: I do not, your Honor.
12 MR. EUSTACE: Nor --
13 THE COURT: I am speaking with
14 Ms. Scotto now. Have a seat, Mr. Eustace.
15 MR. EUSTACE: Nor do we, your Honor.
16 We do not have the transcript.
17 MS. SCOTTO: Your Honor, since this
18 is a lengthy transcript, I would request that
19 you extend our time in which to make those
20 motions on paper. I would ask that it be
21 extended to 60 days from today.
22 THE COURT: I would extend it 60 days
23 from the conclusion of the trial.
24 MS. SCOTTO: Your Honor, may I also
25 ask would there be an opportunity for us to see

1440
Proceedings
1 what the court exhibits were marked as? I know
2 what they were, but I don't know what they're
3 marked as.
4 THE COURT: Let's get one thing at a
5 time. Mr. Durst, what do you have?
6 MR. DURST: I have nothing, your
7 Honor. I concur with everything you have said,
8 obviously.
9 THE COURT: Thank you again,
10 Mr. Durst.
11 Now, with regard to the allegation by
12 Mr. Eustace that the Court some way or another
13 got a hold of a letter from Mr. Durst and then
14 changed my mind or made a decision based upon
15 the letter, first and foremost, Mr. Eustace, I
16 am outraged that you would even suggest such a
17 thing. I don't know you, Mr. Eustace,
18 obviously you do not know me, but I'm clearly
19 outraged by that.
20 Secondly, just so that you know, we
21 were in session on -- the Court was here on the
22 10th; we were not here on the 11th. Last week
23 the Court's secretary was not available. So
24 the Court received no mail in chambers for the
25 good part of the week. Just so you know, sir.

1441
Proceedings
1 So there is this regularity presumed
2 with regard to mail delivery. Obviously, you
3 don't know how mail is delivered to the Court.
4 So I did not receive any correspondence from
5 Mr. Durst and, as a matter of fact, when
6 Ms. Scotto's receptionist or secretary called
7 the Court Thursday to inform the Court that
8 Ms. Scotto wanted to fax over a letter that she
9 put together after she received Mr. Durst's
10 letter, Ms. Scotto will probably be able to
11 glean from that secretary that the Court
12 refused to have that letter faxed because the
13 Court was not interested in hearing about
14 anyone's letters because the Court was having
15 everyone back here this afternoon. If there
16 were any issues with regard to any letters from
17 anyone it would come up this afternoon.
18 So not only did I not see Mr. Durst's
19 letter, but I did not have Ms. Scotto's
20 secretary read the letter which apparently
21 Ms. Scotto had also written in response to
22 Mr. Durst's letter. So I have no knowledge of
23 the contents of either of those letters, nor
24 did I receive any faxes of either of those
25 letters. Just so the record is clear.

1442
Proceedings
1 With regard to prejudice to any of
2 the parties, again, there is no prejudice.
3 With regard to secrecy there is no secrecy.
4 But the Court has the right to decide when it
5 will disclose information to attorneys and when
6 it shall not. That is my prerogative. If you
7 choose to characterize that as secrecy, you
8 characterize it as you wish, Mr. Eustace, but
9 there was no secrecy here.
10 MR. EUSTACE: Why weren't my
11 questions answered?
12 THE COURT: This is not a
13 conversation, Mr. Eustace. I'm making a record
14 now.
15 So there was no secrecy. And I chose
16 to have all parties here since I knew very well
17 that everyone would be taking their respective
18 legal position with regard to what was going to
19 happen. This was the place where it was going
20 to happen, not in an ex-parte communication
21 with any of the parties. The Court, through
22 its clerk, reached out to each attorney to
23 advise them as soon as the Court was in a
24 position to decide that it was entering
25 judgment on the first verdict sheet, to apprise

1443
Proceedings
1 the attorneys that it needed them to appear in
2 court. We were not inclined to tell any of the
3 parties anything with regard to the reason that
4 you were coming in to court. All right? Just
5 so the record is clear.
6 Now, you have your post-trial
7 motions. You now have the verdict sheet upon
8 which you will base those motions. And we will
9 have these motions back in, let's make it the
10 week of August the 16th. I will have those
11 motions on August 16th.
12 MR. EUSTACE: Your Honor, could I
13 make a request that until the motions to set
14 aside the verdict are decided that there be a
15 stay of entry of any judgment?
16 THE COURT: Well, that happens
17 automatically with motions.
18 MR. EUSTACE: Thank you, your Honor.
19 THE COURT: We are now --
21 ask you the reason -- the ruling in terms of
22 setting aside that second verdict and instating
23 the first verdict, that was done sua sponte?
24 THE COURT: As I said, we came in
25 today for the purpose of the Court advising

1444
Proceedings
1 counsel that I will be entering judgment on the
2 first verdict sheet.
3 MS. SCOTTO: Your Honor, I'm just
4 unclear. Was it at someone's request? Is that
5 sua sponte?
6 THE COURT: That is a sua sponte
7 decision by the Court. All right?
8 MR. EUSTACE: Your Honor, could we
9 have a just a brief recess before we close the
10 record?
11 THE COURT: I'm done with this case.
12 We are back here on June -- I'm sorry, on
13 August 16 with post-trial motions.
14 MR. EUSTACE: Your Honor, two
15 requests. Could we know what exhibits the two
16 court exhibits are?
17 MS. SCOTTO: All the court exhibits.
18 Your Honor, could we just have a list
19 of what they are marked as?
20 THE COURT: There are 18 court
21 exhibits. And you can see them, the court
22 clerk has them. You can see what he has got.
23 We are now --
24 MR. EUSTACE: Your Honor, could I --
25 it's very important that -- could we just know

1445
Proceedings
1 why your Honor made this judgment that the
2 verdict that was entered and announced in open
3 court is to be set aside?
4 THE COURT: As I said, the first
5 verdict sheet there was an incorrect
6 instruction at page -- at Question No. 8. The
7 jurors notwithstanding that incorrect
8 instruction finished filling out the verdict
9 sheet correctly. And that is why I am entering
10 the first verdict sheet because there was an
11 incorrect instruction which the Court and all
12 three attorneys did not catch the second and
13 the third time that we sat down with this
14 verdict sheet, but the jury notwithstanding
15 that incorrect instruction, followed the
16 verdict sheet as they should have followed the
17 verdict sheet. So that is why the first
18 verdict sheet is the verdict sheet that I am
19 entering judgment on.
20 MR. EUSTACE: Now, your Honor, it's
21 my understanding that plaintiff's counsel did
22 not preserve objection to that instruction,
23 that your Honor is basing this reversal on, for
24 appeal. And that being the case, has waived
25 any right to attack the verdict based on

1446
Proceedings
1 whatever instruction is or is not in error.
2 THE COURT: Excuse me, would you say
3 that again?
4 MR. EUSTACE: I will happily.
5 It's my understanding that
6 plaintiff's counsel did not object to that
7 instruction and in the failure to object on the
8 record during the trial to that instruction,
9 has waived any right to appeal on that basis.
10 THE COURT: Again, you have asked me
11 for time to get the record. So at this time --
12 you weren't even here, sir, correct?
13 MR. EUSTACE: Like I said, it's my
14 understanding --
15 THE COURT: So we will wait until all
16 the record is in.
17 MR. EUSTACE: Which is simply what I
18 have been asking.
20 MR. EUSTACE: What I have been asking
21 your Honor to do --
23 (Clerk's scratch copy of Verdict
24 Sheet No. 1 was marked Court's Exhibit 19.)
25 (Letter from Mr. Durst to the Court

1447
Proceedings
1 dated 6/8/04 was marked Court's Exhibit 20
2 for identification.)
4 * * * * *
5 Certified to be a true and accurate
6 record of the within proceedings.
7 __________________________________
8 Lorraine L. Ramsey
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Rodriguez VSNational

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Rodriguez VSNational

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1

1 SUPREME COURT OF THE STATE OF NEW YORK

22 DEFENDANT: FRANCINE SCOTTO, ESQ.

2 MR. DURST: John Durst for the

3 plaintiff Cirro Rodriquez.

4 MS. COTTES: Rose Cottes for the

5 defendant National Equipment Corp.

6 MS. SCOTTO: Newman Fitch by Francine

7 Scotto for defendant Ferrara Foods &

8 Confections, Inc, third-party defendant.

9 (Whereupon, the following discussion

10 takes place in the robing room among the

11 Court and Counsel, outside the hearing of

12 the sworn jury.)

13 THE COURT: We are in the robing room

14 outside the hearing of the jury.

15 Apparently, I've been advised by my

16 court clerk that Cleo Solomon,

17 S-O-L-O-M-A-N, alternate number three,

18 called in ill this morning.

19 Apparently, she may have some sort of

20 stomach virus. I don't anticipate that

21 this will be more than one day so we have

23 Let's go off the record for a moment.

24 (Whereupon, the following discussion

25 takes place in the robing room among the

2 Court and Counsel, outside the hearing of

3 the plaintiff and sworn jurors.)

4 THE COURT: Back on the record. We've

5 discussed off the record the alternatives

6 available to us and Mr. Stone, our court

7 clerk, indicates that having had a full

8 and complete conversation with Miss

9 Solomon, he doesn't believe that she will

10 be with us certainly not today and the

11 question becomes if she will be amenable

12 for coming in for the balance of the time

13 that we may anticipate being on trial.

14 Mr. Stone, you told her what exactly

15 with regard to her being here?

16 THE COURT CLERK: When she called in

17 ill, she said she was heading to the

18 doctor. I said chances are we are

19 starting at 2 o'clock, can you be here by

20 then? She indicated that she doesn't know

21 how fast she'll be seen at the clinic and

22 from the general conversation and the

23 nature of her symptoms she was -- she had

24 indicated she had -- she was up-chucking,

25 she indicated she had diarrhea. She did

2 not sound healthy.

3 THE COURT: In other words a stomach

5 THE COURT CLERK: Stomach virus

6 perhaps it can cleared up within 24 hours

7 but from my conversation with her she

8 didn't seem to be -- she didn't think it

9 was likely that she would be with us --

10 THE COURT: Recovering any time soon.

11 THE COURT CLERK: -- quickly. In

12 purposes of the jury delay of the case, it

13 would be a few days to wait for her.

14 THE COURT: All right. In view of the

15 fact that Mr. Durst, you have already