Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 12 L 11854
Honorable Lorna E. Propes, Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with
opinion. Justices Gordon and Ellis concurred in the judgment
1 Plaintiff Thomas Neuhengen was working at a trade show at
McCormick Place in Chicago when he was injured by a forklift
driven by defendant Frederick Neirinckx, an employee of
defendant Global Experience Specialists, Inc. (GES).
Plaintiff filed a complaint alleging negligence and willful
and wanton conduct against GES and Neirinckx. Prior to the
jury trial, Neirinckx admitted his negligence, and GES
admitted negligence under the respondeat superior
doctrine. GES further admitted that if Neirinckx's
conduct was found to be willful and wanton, then it admitted
its respondeat superior liability for
Neirinckx's conduct. Following the trial, the jury
awarded plaintiff $12, 228, 068 in compensatory damages on
the negligence claims and $3, 000, 000 in punitive damages
after finding GES's conduct to be willful and wanton in a
special interrogatory. The jury found that Neirinckx's
conduct was not willful and wanton in a special
2 Defendants filed a posttrial motion raising multiple
claims, including a motion for a new trial and a request for
judgment notwithstanding the verdict (JNOV) on the $3, 000,
000 punitive damages award against GES. The trial court
granted defendants' motion for a JNOV on the punitive
damages award, finding that plaintiff failed to prove
GES's willful and wanton conduct proximately caused
plaintiff's injury. Plaintiff filed a motion to
reconsider the trial court's grant of JNOV, which was
3 Defendants appealed and plaintiff filed a cross-appeal. In
their appeal, defendants argue that the trial court abused
its discretion in denying their motion for a new trial
because they were deprived of a fair trial when the trial
court failed to dismiss the count against GES alleging
willful and wanton conduct after GES admitted its
respondeat superior liability for Neirinckx's
conduct. In his cross-appeal, plaintiff contends that the
trial court erred in granting defendants' motion for a
JNOV on the jury's verdict that GES's conduct was
willful and wanton and striking the punitive damages award.
4 In September 2012, GES served as an official services
contractor for the 2012 International Manufacturing
Technology Show (IMTS) at McCormick Place. IMTS involved
three phases: the "move-in" phase, when all large
equipment for exhibition was brought in; the show itself for
exhibitors and guests; and the "move-out" phase,
when workers removed the heavy equipment exhibited at the
show. GES hired Neirinckx as one of its forklift operators
5 On September 18, 2012, plaintiff was at IMTS during the
move-out phase for his employer, the Hermle Corporation
(Hermle), an exhibitor at the show. Plaintiff was in the
Hermle exhibitor booth when Neirinckx was operating a 58,
000-pound Versa Lift 40/60 forklift (Versa Lift) to remove
equipment. Neirinckx was working with Christopher Nash,
another GES employee, as his spotter. While attempting to
pick up a piece of Hermle's equipment, Neirinckx operated
the Versa Lift and came into contact with plaintiff's
left foot and ankle causing severe injuries. Nash was
removing debris from the floor and was not acting as
Neirinckx's spotter at the time of the accident.
6 In January 2015, plaintiff filed a motion to amend his
complaint to add separate punitive damages claims against
Neirinckx and GES which was granted in April 2015. The
operative complaint when the parties were proceeding to trial
was plaintiff's fourth amended complaint. Count I alleged
negligence against GES under the doctrine of respondeat
superior for Neirinckx's actions. Count II alleged
direct negligence against GES based on negligent hiring and
training of Neirinckx. Count III alleged willful and wanton
conduct by GES based on Neirinckx's conduct as well as
GES's conduct in hiring and training. Count IV alleged
negligence against Neirinckx in the operation of the Versa
Lift, while count V alleged willful and wanton conduct
against Neirinckx in the operation of the Versa Lift.
7 In August 2015, prior to jury selection, defendants
admitted Neirinckx's negligence and that GES was liable
under the doctrine of respondeat superior. GES also
admitted respondeat superior for any willful and
wanton conduct by Neirinckx if the jury should find against
him. GES then moved to dismiss counts II and III from the
fourth amended complaint, arguing that the claim of negligent
hiring and reckless hiring based on willful and wanton
conduct were "duplicative" in light of its
admission of respondeat superior liability which
eliminated "all corporate misconduct claims in this
case." After arguments, the trial court granted
GES's motion to dismiss count II, the claim of negligent
hiring directed against GES, but denied the motion as to
count III, the claim of willful and wanton conduct based on
GES's reckless hiring.
8 During the trial, the circuit judge instructed plaintiff to
file a new complaint to correspond with the claims being
presented to the jury. Plaintiff's fifth amended
complaint alleged negligence against both Neirinckx and GES
based on Neirinckx's actions in count I, alleged willful
and wanton conduct against Neirinckx in count II, and alleged
willful and wanton conduct against GES in count III. The
willful and wanton allegations in count III were against GES
based upon Neirinckx's conduct as well as GES's own
conduct for failing to have a three person crew, failing to
implement a procedure to check certifications of forklift
operators, and failing to ensure that Neirinckx was trained
in the operation of the Versa Lift.
9 The following evidence was presented at trial.
10 Plaintiff was 35 years old at the time of the trial,
served in the Wisconsin Army National Guard, and had served
two deployments to Iraq. He was employed by Hermle at the
time of the accident and was present during the move-out
phase of IMTS.
11 On September 18, 2012, he arrived at McCormick Place
between 7 and 7:30 a.m. He was working with Richard Saegert.
Plaintiff observed that some of Hermle's machines had
already been loaded onto a truck when he arrived. He noticed
Neirinckx moving one of Hermle's "C22
machines," and "he was backing up with it over a
bunch of crates." Plaintiff went over to Neirinckx and
confirmed that the machine was being taken to the correct
truck to move Hermle's equipment back to Wisconsin. He
also asked Neirinckx to next move the "C22 accessory
skid," which is where all the components for that
machine were placed, to keep the items together.
12 Plaintiff and Saegert moved closer to the accessory skid.
Plaintiff noticed Neirinckx "was pushing" one of
Hermle's coolant pans with the forks of his forklift.
Plaintiff asked Neirinckx to stop while he got another
"fork truck" to move the coolant pan out of
Neirinckx's way. Neirinckx backed up and stopped.
Plaintiff asked another person, John Lopez, to come over to
move the coolant pan. While plaintiff stepped away to get
Lopez to assist, he heard Saegert say, "Stop."
Plaintiff turned around and saw Neirinckx moving the
forklift. He heard Saegert tell Neirinckx to wait until the
debris was moved out of the way. Neirinckx then stopped.
13 While in the process of moving the coolant pan with the
smaller forklift, the coolant pan snagged on an extension
cord and slipped slightly off the forks,
"teetering" approximately a foot off the ground.
Plaintiff and Saegert bent down to pick up the pan and
slipped it back onto the forks. Plaintiff believed he was in
a crouch position for a couple of seconds, then stepped away
so Lopez could back up with the pan.
14 As Lopez was backing up with the coolant pan, plaintiff
felt something bump him from behind and he fell to the
ground. At that point, the rear wheel of the forklift
operated by Neirinckx "caught" his left heel and
"then pulled off on [his] foot." Plaintiff
testified that the forks of the forklift were ten feet behind
him. Plaintiff was in front and a little to the right of
15 Plaintiff testified that the cab to the Versa Lift
forklift is to the left as one is seated in it, which left a
blind spot to the right. Plaintiff did not receive any
warning that he would be struck. He was unable to hear the
forklift because there were a number of vehicles moving
around the space. He did not hear a horn nor did anyone
communicate with him that the Versa Lift was going to move.
Plaintiff's safety training had taught him that you
should not turn your back to a moving fork lift. If he had
turned to face Neirinckx's forklift, then plaintiff's
back would have been to Lopez who was operating the smaller
16 At that point, plaintiff could not feel anything in his
foot, but then the "sudden waves of pain" started.
He described the pain as "like someone just took a
sledgehammer and started pounding on [his] foot."
Evidence regarding the extent of plaintiff's injuries is
discussed later in this opinion.
17 Richard Saegert was employed by Hermle and he was working
with plaintiff during the move-out phase of IMTS when
plaintiff was injured. He first observed Neirinckx operating
the forklift when he was moving the coolant pan. He heard
plaintiff tell Neirinckx to stop, and Neirinckx moved
backwards approximately one foot and stopped. Saegert then
tried to move the coolant pan with plaintiff, but they were
unsuccessful. Plaintiff went to get a smaller forklift.
Another employee, John Lopez, was attempting to lift the
coolant pan with the smaller forklift when it got
"snagged" on an extension cord. Plaintiff and
Saegert "used [their feet] to lift it back on the
forklift to relocate it."
18 Next, Neirinckx started to move approximately a foot
closer and Saegert told him to stop, which he did. The
accident happened shortly thereafter. Saegert did not receive
any warning from Neirinckx that he was going to move and did
not hear a horn. Saegert did not see a spotter with
Neirinckx. Saegert denied that he or plaintiff bent over or
got down on a knee. He testified that neither he nor
plaintiff left the area of the coolant pan.
19 When plaintiff was struck, he started to fall and Saegert
caught him and heard an "awful scream." Saegert
told Neirinckx to get off the forklift, which he did.
Neirinckx turned off the forklift, got off, did not say
anything, and walked away.
20 Frederick Neirinckx testified that he began operating
forklifts in the 1960s. In 2012, he had been
"semiretired' for about 8 to 10 years. He worked
every other year at a couple shows. The Versa Lift had been
around about 10 years prior to the accident. The Versa Lift
weighed about 58, 000 pounds. When sitting in the cab of the
forklift, there is a blind spot. He estimated that to the
right, the operator cannot see the floor until 10 to 12 feet
away from the forklift. Neirinckx had operated them
"ever since they came out," but he did not receive
any specific training for that forklift, nor had he received
any training since some time in the 1990s.
21 He was hired by Larry Gibas from GES for the IMTS
convention in 2012. Gibas had previously hired him in 2010
and 2008. Gibas never asked for certification from Neirinckx.
No one informed him that the Occupational Safety and Health
Administration (OSHA) had a certification requirement. He was
never taught not to move the Versa Lift without a spotter. He
was not taught to communicate with people around the area
before moving the forklift.
22 On September 18, 2012, Neirinckx arrived at McCormick
Place between 6:30 a.m. and 6:45 a.m. He moved a machine to a
truck before the accident. He returned to the Hermle booth
and plaintiff told him to take the accessory skid and to
place it in the truck next to the previously loaded machine.
To get to the accessory skid, he had to go around a machine,
but there was a coolant pan on the floor. He pushed the
coolant pan with the forks of the Versa Lift. Plaintiff asked
him to stop pushing the pan. Neirinckx backed up to a neutral
position to get around the machine and then he stopped. He
observed debris in front of the accessory skid and asked his
spotter, Christopher Nash, to move it, which Nash did.
Neirinckx testified that plaintiff was off to the right of
23 Neirinckx looked to see if Nash had finished clearing
debris, but Nash was still clearing items and his back was to
the forklift. Neirinckx was going to line up with the
accessory skid. He testified that he looked to his right and
no longer saw plaintiff in the spot where he had seen him. He
did not see Saegert either. He did not wait for his spotter
before moving the forklift. He did not sound the horn or tell
anyone that he was going to move the forklift.
24 Neirinckx moved the forklift to his left to point toward
the accessory skid. He then heard someone yelling for him to
stop, but he did not know who it was. He had completed
approximately 90% of the turn. He did not hear plaintiff
scream. He put on the brake and got out of the forklift. He
saw plaintiff on the floor and realized he hit plaintiff with
the right tire. He testified that he had assumed plaintiff
had moved, but he never saw him leave.
25 Neirinckx took a drug test after the accident, which he
passed. He continued to operate the forklift that day and the
following day. He testified that after the accident, someone
from GES asked to see his certification and he told them he
did not have one. He was not told that he needed to be
retrained under OSHA regulations. After the show, he received
a certified letter stating that GES had suspended him.
26 Christopher Nash testified that he was hired as part of a
two-man crew at IMTS 2012. He worked as a forklift operator.
His other crew member was Neirinckx. Neirinckx was the
foreman of their crew and Nash was the journeyman. The
journeyman takes direction from the foreman. Nash was a
member of the Local 136 union and was trained in the
operation of forklifts, including the Versa Lift. He was
assigned to IMTS through the union. When he checked in on the
site, no one from GES asked to see his certification card.
27 On September 18, 2012, Nash arrived between 6:30 and 7
a.m., but his start time was 8 a.m. He observed Neirinckx
working before 8 a.m. without a spotter. Nash described the
spotter's role as looking out for hazards, clearing the
right of way, and making sure everyone is out of the
direction of travel. He and Neirinckx were assigned to
plaintiff's booth. They were to "pick a skid"
and clear debris. He was moving "stuff" out of the
way before the forklift could turn to reach the accessory
skid. His back was to the area where the coolant pan was
28 As he was clearing debris, he heard the engine of the
forklift turn on. He testified that he tried to hurry and
finish getting the "stuff" out of the way. His back
was to the Versa Lift. The next thing he heard were screams.
He turned and saw Neirinckx driving toward him. Nash
estimated that 30 to 60 seconds passed from when he heard the
forklift turn on until he heard the scream. Neirinckx did not
notify him or sound the horn indicating he was going to move
the forklift. Nash expected that Neirinckx was going to wait
for Nash to spot for him. When Neirinckx moved the forklift,
the accessory skid was not accessible because Nash had not
finished clearing debris. Nash was able to get
Neirinckx's attention to stop the forklift only after
Nash heard the scream. Nash then walked to the back of the
machine to see who was screaming and observed plaintiff
"laying on the floor in pure agony yelling and
29 From what Nash could tell, the back right tire drove over
plaintiff's foot. He described the Versa Lift as
"rear heavy." Nash also took a drug test after the
accident, which he passed. He then returned to work. He
testified that OSHA required people to be retrained after an
incident. They resumed use of the same forklift, but Nash
operated it. Neirinckx operated the Versa Lift over the next
few days. At the time of the accident, Neirinckx did not have
a spotter. Nash testified that Neirinckx had operated before
without a spotter. Nash told Mike Burns, the GES general
foreman at IMTS in 2012, that Neirinckx "was a little
bit unsafe, that [Nash] was a little weary [sic] of
working with him."
30 Nash believed that the Versa Lift needed a three person
crew, one spotter for either side, because "the mass is
so big you can barely see what's in front of you so you
have to have someone in front of you, telling you what to do
and most likely you would want the guy on the right-hand side
because that's the side you can't see." Nash
testified that if Neirinckx had waited until he was acting as
the spotter, Nash would have cleared Neirinckx's travel,
told people to get out of the way, made sure Neirinckx was
going in the right direction, and made sure everything was
out of the way.
31 John Lopez testified that he was employed as a rigger, a
member of Local 136, and was working IMTS in 2012. He was
hired by Larry Gibas from GES. On September 18, 2012, Lopez
was operating a small forklift and was asked to move a
coolant pan by plaintiff at the Hermle booth. He slid his
forks under the pan, but the pan slid off the forklift
because of an extension cord. He was not paying attention to
Neirinckx; he was paying attention to his "pick."
When the pan slid off the forklift, plaintiff and his
coworker helped to slide it back onto the forks. Lopez
testified that plaintiff "crouched down" to push
the pan. Lopez was "pretty sure" but "not 100
percent sure" that plaintiff got on one knee with one
foot stretched behind him. Lopez believed that plaintiff was
in that position when he was struck by the Versa Lift. He
testified that the Versa Lift would not have hit plaintiff
"if he hadn't had his leg out."
32 Lopez was trained and certified to operate the Versa Lift.
He had also worked as a spotter. He did not have a spotter
for his forklift because it was small and he could see all
around the machine. Lopez was preparing to back up with the
pan on his forklift when the accident occurred. Lopez
testified that he had turned around "real fast" to
check if he could back up when the accident happened. He
agreed that he might not have seen plaintiff stand up. Lopez
agreed "100 percent" that plaintiff did not do
33 Dan O'Donnell was employed as the apprentice
coordinator for Local 136, the only rigging union in the
country. A "rigger" is a person with a specialty in
moving large items, including machinery. The union did not
have a forklift certification until the mid 1990s. He trains
forklift operators to be OSHA certified. OSHA requires
certification every three years. Local 136 "will not
dispatch anybody unless they are certified on that
34 O'Donnell testified that he knows Neirinckx, who is a
member of Local 136. He thought Neirinckx had retired. He has
not observed Neirinckx at any of the safety classes, nor has
he ever evaluated Neirinckx. According to O'Donnell, no
one can be "grandfathered" into training because
the person has been operating a machine for a long time. He
noted that the Versa Lift is "notorious for certain
blind spots, dead behind it, to the right if it's just
forks. The actual whole front end has a boom on it. You
cannot see anything."
35 Training sessions were offered prior to IMTS in 2012.
Under the collective bargaining agreement, GES had the right
to pick up to 50% of the riggers, while Local 136 would
dispatch the rest. Neirinckx was a member of Local 136 at the
time of IMTS but was not dispatched by it; he was hired by
GES. He was aware of the OSHA rule requiring people in an
accident to be retrained. He was not present at IMTS in 2012
when the accident occurred.
36 Cedric Johnson testified that during IMTS in 2012, he was
the senior safety manager of the East for GES and he was at
IMTS during the show. He was aware that OSHA regulations
required forklift operators to be certified, which included
training and an evaluation for competency. An individual has
to be recertified every three years.
37 He testified that at IMTS in 2012, operations should have
been checking for certification cards. He does not know if
operations fulfilled that obligation. If no one checked
certification, then it was a violation of safety rules and
policies. Johnson was at McCormick Place at the time of the
accident but did not witness it. He went to the scene shortly
thereafter. He was aware of the OSHA regulation that
Neirinckx needed to be retrained following the accident. He
took Neirinckx for the drug test after the accident. During
that time, Johnson did not ask to see Neirinckx's
certification nor did he discuss retraining with him. He
agreed that Neirinckx should not have returned to work.
Johnson also agreed that Neirinckx should have been
38 Pete Carroll testified that he was the general manager of
the central division for GES. Carroll had himself taken a
performance test, received training on operating a forklift,
and maintained his certification. He agreed GES had
responsibility for ensuring all on-site employees, including
Neirinckx, were trained to operate forklifts. He was also
aware that employees had to be retrained after an incident
and that employees have to be recertified every three years,
regardless of the employee's experience. He agreed that,
when there is pedestrian traffic nearby, the operator of a
Versa Lift should not move the forklift unless he had a
spotter on the ground to assist and to guide and the operator
must receive direction from his spotter before moving.
39 Carroll admitted that Neirinckx was not certified when
operating a forklift at IMTS in 2012. He agreed that GES
violated that safety rule and Neirinckx should not have been
hired based on his lack of certification. Carroll further
admitted that GES did not have a process in place to check
certification at IMTS in 2012. He testified that they
"relied on Local 136 to provide certified forklift
operators per [their] collective bargaining agreement."
He admitted that he had no way of knowing if the GES direct
hires were certified, but Local 136 notified him that the
operators dispatched from the union were certified. He agreed
that Neirinckx was a direct hire. He also agreed that it was
the employer's responsibility to maintain certification
under OSHA regulations. Carroll testified that the operations
manager in the hall where Neirinckx was assigned should have
had a process in place to check certification.
40 Carroll was present at IMTS but did not witness the
accident. He arrived at the scene soon afterward. He did not
ask Neirinckx if he had a certification card and did not know
if anyone else asked. Carroll did not tell Neirinckx that he
needed to be retrained, nor did he direct Johnson to tell
Neirinckx. He testified that he left a voicemail for Anthony
Madrigal to send Neirinckx and Nash home, but he later
learned that was not done. Carroll could have told Neirinckx
that he could not operate a forklift again until he was
retrained. Carroll testified that the allowed crew size for a
forklift operation was for a crew of two individuals but more
could be assigned if warranted.
41 Anthony Madrigal testified that at IMTS in 2012, he
oversaw part of the operations. At that time, he was vice
president of national operations for GES. On September 18,
2012, he was present at IMTS but did not witness the accident
and did not go to the scene. He admitted that he could have
instructed Johnson to take Neirinckx off the floor and
retrain him, but he did not do so. He further admitted that
several other GES employees had the authority to remove
Neirinckx from the floor and send him to be retrained. He
also admitted to receiving a voicemail from Carroll telling
him to send Neirinckx and Nash home, but he did not send them
home. He contacted Larry Gibas, the superintendent in charge.
He did not receive confirmation that Gibas sent them home,
but he assumed they had been sent home.
42 GES had the rule, in compliance with OSHA, that any
forklift driver involved in an injury-producing incident
needed to be retrained and recertified. GES did not enforce
that rule on September 18, 2102, or for the two days
thereafter. Madrigal did not know if he was the person to ask
on behalf of GES if there was a process in place to check
certification. Madrigal testified that he was "high
level" and he was "more overseeing the service of
the show and the movement of the traffic." Madrigal
believed there was a process in place to check certification,
but that it was not followed. Madrigal had "very
little" interaction with the riggers and did not know
who Neirinckx was prior to the accident.
43 Madrigal testified that "drayage" is "the
charging of moving the freight off the vehicle to the exhibit
spot and then back to the truck after the show." Drayage
is what the forklift operators do.
44 Larry Gibas was a superintendent at IMTS in 2012; he
received "all the rigging, rigging labor for all the
buildings," which included forklift operators. He was
certified by Local 136 and reported to Madrigal. Mike Burns
was his foreman in the south hall of McCormick Place, where
the accident occurred. He was aware that all the forklift
operators needed to be trained and certified. Gibas was not
informed to check that forklift operators were trained and
certified. He never checked for certification, nor did he
instruct any GES management or personnel to check forklift
45 Gibas knew Neirinckx for a long period of time. If
Neirinckx called him to work at the IMTS, Gibas would not
have asked Neirinckx if he was certified or trained recently.
He understood that Neirinckx was not working regularly, but
Neirinckx had worked the IMTS every year Gibas was the
superintendent, which took place in the even years back to at
least 2004. Gibas was not aware of anyone from GES being
charged with the responsibility of ensuring OSHA compliance.
He agreed that Neirinckx was not dispatched by Local 136.
Prior to the accident, he was not aware of anyone ensuring
that Neirinckx was trained and certified. Gibas had observed
Neirinckx at IMTS in 2012, but he did not evaluate him.
46 In 2012, the protocol for a forklift operator involved in
an accident was for that operator to advise the safety
people, including Madrigal, Carroll, and Dave Mata, about the
occurrence. Then they would "come over with their safety
people and they kind of take the course from there." He
testified that the involved crew automatically went for a
drug test and, if they were cleared, "then we put them
back to work." Gibas was unaware that an OSHA regulation
required a forklift operator to be retrained after an
accident. Gibas testified that on the day of the accident, no
one told him that Neirinckx needed to be sent home and get
47 Gibas testified that since he was a superintendent for
GES, Neirinckx had unloaded the heaviest pieces in the show
and he considered Neirinckx one of the most important
forklift operators. Neirinckx was "a great help"
for GES. Neirinckx was fast at "making picks" and
was more productive. Gibas testified that the "past
practice" of GES was to return employees to work after
an incident if the drug test was negative. Gibas admitted
that a forklift operator making a pick with the Versa Lift
should have a spotter and it is reckless to operate it
without one. It was a safety rule not to move the Versa Lift
in the presence of pedestrians without a spotter.
48 Mike Burns was employed as a rigger, a member of Local
136, and was a certified forklift operator. He was the
rigging general foreman for the south building at the 2012
IMTS. His responsibilities included staffing the job and
overseeing the rigging work on the floor. The actual riggers
would report to him, and he reported to Gibas. He knew
Neirinckx, who worked under Burns. Burns described Neirinckx
as an "experienced operator," and he handled
"a lot of the very difficult moves that we have."
49 Burns was aware of the accident on September 18, 2012, but
did not see it happen. Prior to that date, Burns had not seen
Neirinckx operate the Versa Lift in an unsafe manner. Nash
never reported to him that Neirinckx was operating unsafely
or without a spotter. Burns admitted that he did not check
certification, nor was he told by GES employees to check for
certification. He agreed that Neirinckx was fast at making
"picks," but fast did not necessarily mean unsafe.
50 David Mata was employed by GES; in 2012, his title was
national operations manager, which required him "to
travel to different cities and implement new processes and
redefine the old process." His role involved the
planning of freight movement and logistics. His supervisor
was Madrigal. Mata agreed that a forklift operator must be
trained and certified every three years regardless of
experience and that experience does not trump training and
certification. OSHA regulations required this safety rule.
Mata was a certified forklift operator.
51 Mata agreed that the Illinois legislature formerly
required a three-person crew for every forklift, but the law
changed in 2010 to require only a minimum two-person crew. He
also agreed that GES still had the discretion to assign an
extra crew member as safety required. He recognized this
would be more expensive for GES. Mata acknowledged that the
GES operations team decided before IMTS in 2012 that it was
not going to utilize a three-person crew with the Versa
52 Mata did not know at the time of the accident that an
operator needed to be retrained, but he knew that requirement
at trial. He did not have a procedure in place at IMTS in
2012 to check certifications. He admitted that no procedure
existed for GES to check certifications at prior IMTS shows.
He assumed that all the riggers, either dispatched by Local
136 or directly hired by GES, would be certified. If he had
known prior to the accident that a forklift operator was not
certified, Mata would have had the operator get
"certified or sent home." Mata was on the floor of
the hall, and if he saw anyone operating a machine unsafely,
he would stop them. He did not recall seeing Neirinckx
operate unsafely. If a crew requested a third crew member,
then GES employees would check to see if one was needed. If
additional crew members were needed, then they would be
53 Derek Pinnock testified that in 2012 he was employed by
GES as the chief of security and safety. At the time of
trial, he no longer worked for GES. According to Pinnock,
beginning in 2009, GES implemented, as part of its business
plan, the Lean Six Sigma plan, which eliminated safety
managers. GES went from having about 7 to 10 safety managers
in place throughout the country to only two safety managers
at the time of IMTS 2012. Prior to Lean Six Sigma's
implementation, there was a safety manager devoted to
Chicago, but there was no safety manager after its
implementation. When Pinnock became chief of security and
safety in 2012, he "had a vision to kind of build the
safety program with additional managers."
54 Pinnock testified that OSHA regulations constituted
minimum safety standards. He knew OSHA required employers to
certify forklift operators and believed it was
"absolutely" within GES policy to ensure that
forklift operators were all certified, for the protection of
human safety. Pinnock stated that when a company is cited for
an OSHA violation, it has the option to contest the
investigation or enter into an abatement process to show
corrective measures the company wants to take. It was
Pinnock's understanding that the corrective measures were
to be "forever" once put in place. Pinnock was