MALIS|LAW has obtained $487,500 for a hospital worker who injured her neck and shoulder when a hospital window tilted inward and fell on her.  We were able to obtain a settlement from the window manufacturer, designer, and three installation companies who worked on the window based on negligent design, manufacture and installation of the window even though the hospital had discarded the window, therefore throwing out the best proof of how the accident happened.

My client, a 41 year old inventory assistant, was opening a window in an employee break room when the window sash (the part we normally think of as ‘the window frame’) flew up out of her hands, fell inwards and struck her a glancing blow on the head, knocking her to the ground.  She sustained a cervical disc herniation, for which she underwent surgical fusion; a tear of her rotator cuff, with resulting frozen shoulder, again surgically treated; and was permanently totally disabled from work.  This incident was one of several window malfunctions occurring after a state hospital opted to replace permanent windows with swiveling replacement windows.  Unfortunately, the hospital decided to discard the window well in advance of our firm being hired, essentially ‘destroying the evidence’ of what had caused the window to malfunction.

Through careful investigation and extensive pretrial discovery and depositions, we were able to reconstruct the window failure, tracing the problem back to the window pivot at the bottom of the window sash and the locking clip at the top.  We initially sued the installer and manufacturer of the window, alleging negligent and defective design and manufacture, as well as negligent installation.

By comparison with window specifications produced by the window’s original factory designer to the actual window, we were able to prove that the factory which manufactured the replacement window purchased its locking clips from a different manufacturer from that specified, but didn’t change the tooling that drilled the holes.  The spring driven lock was therefore installed too far away from the edge of the window, and the locking mechanism would therefore not fully extend into the window channel, making the window unstable at the top.  Similarly, the manufacturer substitued a different ‘pivot bar’ at the bottom of the window with an inadequately threaded and secured locking screw, which would tend to strip and loosen, causing the window to lose contact with its spring counterweight on one side; fly upwards on the other; and leave its channel, resulting in the Plaintiff’s accident.  We were also able to show by deposition that the window’s manufacturer had no idea of the implications which their substitution of components had caused, and had done little to determine whether changing components would have changed tooling or manufacturing requirements prior to putting the changed window out on the market.

Through careful investigation and multiple depositions, we also discovered that there were additional servicing companies which were assigned to repair the subject window prior to the Plaintiff’s accident when it was binding and sticking, likely because of these defects, and that these companies should have detected the design and installation defect.   We added these companies, as well as the company which had initially designed the window 20 years before, as defendants.

The Defendants strongly disputed the extent of the Plaintiff’s injuries, claiming that her complaints of neck pain were vastly exaggerated, and that her shoulder injury was largely healed.  We were able to counter these arguments with strong medical testimony, as well as a comprehensive vocational report that proved that her limitations prevented her from re-entering the work force, supporting a claim of hundreds of thousands of dollars of present and future wage loss.

The case was settled prior to trial for $487,500, with the bulk of the funds coming from the window’s manufacturer for their variance from the window’s original specificaitons.

While I’m debunking myths, here’s a morality tale, as they say on TV, ‘ripped from today’s headlines’ . . .

“Boston Scientific to pay $22M in payment inquiry
By MARLEY SEAMAN
The Associated Press
Wednesday, December 23, 2009; 4:53 PM
NEW YORK — U.S. attorneys in Boston said Wednesday heart device maker Boston Scientific will pay $22 million to resolve allegations its Guidant division paid kickbacks to doctors to get them to use its heart devices.
The U.S. Department of Justice said Guidant paid physicians $1,000 to $1,500 each in 2003 and 2004 to participate in four studies, called RaCE, RaCE II, RaCE III, and MERITS. It said the studies were designed to increase sales of pacemakers and defibrillators.
Federal officials said the company targeted doctors who favored products made by other companies, hoping the payments would induce them to use Guidant devices more often. They said Guidant submitted claims for payment on the devices to Medicare.
Boston Scientific did not admit wrongdoing as part of the civil settlement. Under the agreement, its cardiac rhythm management division will have to publicly disclose payments to physicians on a Web site. Boston Scientific also entered into a corporate integrity agreement.
The studies were conducted after the Food and Drug Administration had cleared the products for sale. Post-approval studies are often used to further evaluate medical devices or compare their performance.
Boston Scientific bought Guidant in 2006. The company is based in Natick, Mass.
Its shares rose 2 cents to close at $8.82 Wednesday. “