Archive for the ‘Product Liability’ Category

Manufacturer Lies; Worker Loses Arm; MALIS|LAW Recovers $1.7 Million — The Case of the Misleading Manufacturer.

They shredded his arm. Then we shredded their defenses.

Our client was a 51 year old worker at a paper plant who assisted a fellow worker in clearing an industrial shredder which was repeatedly jamming at his workplace.  After clearing pounds of paper out of the teeth of the device, he turned the machine on and off quickly to make sure that it was clear, and then attempted to screw its cover back in place.  He had no idea that the blades continued to spin after being turned off.

When the cover slipped, his arm was grabbed by the spinning blades and was shredded up to his elbow.

To his co-workers, who saw him running through the plant screaming holding his flayed arm,  it looked like he was fighting with a strange bird.

He was flown to the hospital, where doctors saved his life, but could not save his arm.

MALIS|LAW took the lead in the litigation, working with a team of lawyers. We repeated our partnership with Lawrence attorney Frederick Fairburn, this time joined by local attorney Robert Armano, a professor at the Massachusetts School of Law, to whom our client originally came.

We conducted investigation which revealed the poor design of the hatch of this industrial shredder, which brought workers’ arms dangerously close to sharp cutting blades without adequate protections or interlocks to prevent the machine from functioning with the hatch open.  Discovery disclosed that the manufacturer had literally stolen the 30 year old design of a competitor without incorporating the security features that the competitor added to later models, such as an electronic interlock connected to the door; magnets designed to hold the door shut while the shredder blades were rotating; and a hinged wide clamshell housing to prevent workers’ arms or bodies from being caught in pinch points.  The critical “smoking gun”, though, was in the manufacturer’s own marketing on the internet — the company’s site boasted that the machine was equipped with “important safety features” such as a “door interlock”.

Depositions of the manufacturer and installer, which specialized in equipment for paper plants, disclosed further problems.  The installer knew that the paper plant did not have sophisticated workers operating this machine, which was essentially intended to get rid of trash and recycle it.  Despite that, the installer provided the machine without adequate warnings or instructions.  Furthermore, the installer did a poor job of incorporating the shredder into the manufacturer’s existing air conveyor system, which was too undersized to adequately pull paper out of the machine after it had been shredded.  Worse, the installers altered the system by blocking part of the inlet of the shredder with a solid metal plate, cutting airflow through the shredder which, in turn, caused the shredder to jam.  Earlier emails from the installer had recommended use of a perforated plate, which would have restricted feeding of the machine without cutting airflow.

The shredder manufacturer had been sued many times, and in many courts, after injured parties lost eyes and limbs because of their defective machine.  They had never paid a substantial settlement.  As with the other cases, they blamed the installers and our client for the injury.  We knew better.  We sued both the installers and the manufacturer, claiming that all were collectively responsible for the product’s poor design and installation.

We were quickly dragged into a hailstorm of cross complaints and procedural motions, including a separate lawsuit between the plant where our client worked and the installer, where the installer claimed that the plant owners had offered to “lose” embarassing documents if they dropped their claim; indemnity claims between the manufacturer, installer, and the paper plant; and varying stories about how the accident occurred, some of which turned out to be outright lies by employees trying to protect their jobs.  The defendants’ ultimate response was that an uneducated paper plant maintenance worker who did not speak English should have known better than to help a co-worker fix a machine.  We countered with documentation showing that the manufacturer and installer had misrepresented critical facts about the product in their marketing, exposing them to multiple damages under the Massachusetts Consumer Protection Act, G.L. c. 93A.

We hired a team of experts, including several mechanical engineers, hand surgeons, and vocational and economic experts, to prove that this new American citizen who, at the time of his accident, worked two jobs to support his children, had lost his arm, his livelihood, and his quality of life because of the poor design and breaches of safety warranties of the manufacturer, seller, and installer of the shredder.

At the end of the day our team of lawyers prevailed at a mediation in which the defendants offered $1.7 million — the largest amount paid for a lost arm in the Northeast – to settle his case.

The best part, other than seeing our client well compensated for a terrible injury, was “shredding” the manufacturer’s usually successful defenses.  Although the shredder manufacturer had escaped judgments for years in other lawsuits, this time they paid several hundred thousand dollars to avoid the risk of a trial.


Settlement Update: $487,500 for Injured Neck and Shoulder Caused by Falling Window –The Case of the Wayward Window

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.

The Case of the Marketplace Myth — Why Product Manufacturers Have to Be Regulated

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
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. “

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Daniel Malis uses this blog to publish answers to frequently asked questions, convey interesting news and make the occasional law-related rant. If you have any questions or want to contact Daniel Malis, please see the Contact page of the MALIS|LAW Website.