Drywall Installer Nets $1.1M Verdict
Suffered Severe Burn Injuries When Bus Duct Caught Fire
BY MARGI BANNER

A Montgomery County Circuit Court jury awarded $7,500,000 to a drywall installer who was burned over 75% of his body. The award was to be reduced to approximately $1,100,000 after application of a $650,000 statutory cap on pain and suffering and a joint tortfeasor finding.

Plaintiff Mario Alberto Garcia Sanchez was working as a drywall installer at a construction site. He was fitting/installing drywall by shooting pins into the concrete ceiling to hold the drywall in place. The bus duct, which contained 180 volts of electricity, was painted the same color gray as the concrete. Plaintiff shot pins into the duct, which sparked a fire. Plaintiff suffered second and third. degree burns over 75% of his body. Even his vocal cords were burned shut. The bus duct was manufactured by Defendant Siemens Corporation.

Plaintiff alleged there were no visible warnings to let him know he was not shooting pins into concrete. The warning labels placed on the bus duct were on one side only, which was not the side facing plaintiff. Plaintiff argued that, if the duct was to be accessible from both the top and bottom or used as a reversible product, warning labels should have been attached to both sides. Plaintiff claimed he would not have shot pins into the duct had he known what it was. Plaintiff sought damages for permanent significant scarring, pain and suffering, and disability.

Defendant contended that the bus duct was not defective, it met industry standards and no other manufacturer placed warning labels on both sides of a reversible product. Defendant claimed plaintiff was at least partially, if not wholly, responsible for his own injuries for not ascertaining what he was firing into in a poorly lit space.

INJURIES: Second and third degree burns over 75% of plaintiff's' body with the vocal cords. burned shut. Plaintiff regained his ability to speak, but had a raspy voice.

VERDICT: $7,500,000, to be reduced. to approx. $1,100,000.

Montgomery County, MD
Circuit Court

Ceiling Duct Manufacturer Found Liable for Drywaller's Burns

Case Caption: Mario Alberto Garcia Sanchez v. Siemens Corporation
Verdict: $7,500,000 against Defendants Siemens and Truland Service Corporation (a settled co-defendant). The award was to be reduced to approximately $1,100,000 after application of a $650,000 statutory cap on pain and suffering and a joint tortfeasor finding.
Judge: David A. Boynton
Date of Verdict: 12/28/2009
Attorneys:
Plaintiff:
Edward J. Brown, Rockville
Defendant:
Robert Littleton, New York NY
Joseph Lipari, New York NY
Romelia S. Leach, New York NY
Robert Dale Klein, Annapolis

Facts:
A drywall installer who was burned over 75% of his body filed this products liability case against the manufacturer of a ceiling duct that caught fire when the plaintiff shot a pin through the duct. The primary issue in the case was whether defendant's product contained sufficient warnings. A Montgomery County jury found for the plaintiff and awarded him $7,500,000 in damages.

Plaintiff Mario Alberto Garcia Sanchez was working as a drywall installer at a construction site. He was fitting/installing drywall by shooting pins into the concrete ceiling to hold the drywall in place. The bus duct, which contained 180 volts of electricity, was painted the same color gray as the concrete. Plaintiff shot pins into the duct, which sparked a fire. Plaintiff suffered second and third degree burns over 75% of his body. Even his vocal cords were burned shut. The bus duct was manufactured by Defendant Siemens Corporation.

Plaintiff alleged there were no visible warnings to let plaintiff know he was not shooting pins into concrete because the warning labels placed on the bus duct by defendant manufacturer were on one side only, which was not the side facing plaintiff. Plaintiff claimed that installation instructions showed the warning label on the top side of the duct. Plaintiff argued that, if the duct was to be accessible from both the top and bottom or used as a reversible product, warning labels should have been attached to both sides. Plaintiff claimed he would not have shot pins into the duct had he known what it was. Plaintiff sought damages for permanent significant scarring, pain and suffering, and disability.

Defendant contended that the bus duct was not defective, it met industry standards and no other manufacturer placed warning labels on both sides of a reversible product. Defendant claimed plaintiff was at least partially, if not wholly, responsible for his own injuries for not ascertaining what he was firing into in a poorly lit space.

Plaintiff Profile:
Plaintiff was a 28 year old male who was a drywall installer. Alleged Injury: Second and third degree bums over 75% of plaintiff's body, specifically his torso, upper extremities, and face. Plaintiff's vocal cords were burned shut. He recovered the ability to speak, but with a somewhat raspy voice. Plaintiff claimed the .bums caused permanent significant scarring and limited range of motion in his upper extremities and torso. Surgeries were fairly successful in reconstructing his burned face, but he was left with residual scarring where his beard was burned off his face. Plaintiff was administered the Last Rites, but made a miraculous recovery after 23 surgeries. He was eventually able to return to work with the accommodation of his employer and was working as an assistant safety director at the date of trial. Several more surgeries were anticipated, including an esophageal resection and flap reconstruction to improve his respiratory capacity and voice.

Jury Deliberations: 1 day
Expert(s):
Plaintiff:
Ward Caddington, Jr., Fire Cause & Origin - Baltimore, MD
Mark Dempsey, Workplace Safety - Baltimore, MD
David Leone, P.E., Design Engineer - Atlanta, GA
Carl Abraham, PhD, Safety Warnings - New York, NY
Defendant:
Walter Rothsuss, P.E., Engineer - Baltimore, MD
Case Number: 284258V

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Judge Walter Tolub Case CV-03-0564 (PKC)
November 27-28, 2007
Expert-Dr. C. J. Abraham, Flammable Fabrics, Warnings & Instructions
Jury Verdict $2,700,000

Miami, Florida-Dade County
$2,600,000 GROSS VERDICT - PRODUCT LIABILITY - DEFECTIVE RIDING LAWN MOWER ENGINE - DANGEROUS EXPOSED ROTATING ENGINE PART - HAND INJURY TO SEVEN-YEAR-OLD BOY - THREE SURGERIES PERFORMED - LOST OF STRENGTH AND FUNCTION OF DOMINANT LEFT HAND.

This action was brought on behalf of the minor male plaintiff, seven years old at the time of injury. The plaintiffs claimed the boy's hand contacted a rotating engine part on a riding lawn mower being operated by his mother at the time. The defendant manufacturer and retailer of the riding lawn mower settled the plaintiffs' claims prior to trial for a total of $175,000. Trial proceeded against the defendant manufacturer of the mower's engine. The defendant denied the accident occurred as alleged by the plaintiffs and contended the boy actually contacted the cutting blade under the mower not a part of the engine.

The defense additionally argued the accident was caused by the negligence of the plaintiff mother, and the mother was named as a third-party defendant in the case.

The minor plaintiff and his family were visiting his grandfather in 1998. The plaintiff mother testified she was cutting the lawn at dusk, but while it was still light, and her son was walking behind the riding mower. The plaintiffs contended the mower stopped suddenly and the boy extended his dominant left hand to brace himself on the back of the machine. The plaintiff alleged the boy's hand contacted an engine part that was rotating at a speed of 3,600 revolutions per minute.

The part was covered by a screen, but the screen flew off upon contact, according to the plaintiff's claim.

The plaintiff's expert engineer testified the patent for the engine indicates that the part shreds. This expert opined the engine was dangerous and the high-speed rotating part should have been covered for safety. The plaintiff contended the defendant had developed a non-moving safety guard for the part in question, which could have been provided at a cost of $9.50. The plaintiff alleged the defendant failed to notify the lawn mower manufacturer or users of the machine that the cover was available. The plaintiff contended the guard should not have been optional, but should have been included with the engine.

The plaintiff's physicians testified that, although all of the minor plaintiff's fingers were saved, he sustained a disfiguring degloving injury to his left hand with a visible bulge between the thumb and index finger. The boy has a permanent loss of strength and function in his dominant left hand, according to his doctors. He was hospitalized for two weeks following the injury and underwent three surgeries, including a local pedicle flap procedure. The flap procedure involved transfer of skin from the bottom of the palm to the top of the hand.

The first flap surgery developed infection and a second pedicle flap was performed. Finally, the plaintiff underwent a surgery to remove the pedicle flap wherein the plaintiff's left hand was attached near his public groin for a month.

The plaintiff's plastic surgeon testified the plaintiff will require one to two additional cosmetic surgeries in the future at a cost of $15,000 to $20,000.

The plaintiff's vocational expert testified the boy will be precluded from many activities and certain employment opportunities involving manual dexterity, such as carpentry and mechanics, as a result of his permanent disability. The plaintiff's father is a carpenter.

The minor plaintiff missed a month from school and wore a glove on his left hand for a year. He failed the sixth grade the year of the accident. The plaintiff's vocational expert testified the boy needs a private tutor to catch up for time missed following the injury.

The defendant argued the boy must have contacted one of the cutting blades located under the lawn mower while it was running. The defendant's expert engineer testified he tested the engine and found it was not capable of causing hand injuries. One of the tests involved wrapping a towel around his hand and placing it in contact with the rotating engine part, according to the defendant's expert.

The defense also pointed to two notations in the plaintiff's medical records indicating that he was injured by the blade of a lawn mower.

The defense maintained it had sold some 900,000 of the engine models in question with no similar prior incidents.

The defendant also argued it simply followed the specifications requested by the (settling) mower manufacturer and had informed the mower manufacturer of the availability of the safety guard. The defendant contended that the mower manufacturer declined the optional safety guard.

The defendant's plastic surgeon opined that, if the plaintiff requires any future surgery, it would be limited to a single procedure. The defendant's vocational expert testified the plaintiff will be able to perform any manual activity with the aid of available assisting devices.

After a six-day trial, the jury found the defendant negligent and also found that the engine was defective. The jury apportioned 75% liability against the defendant engine manufacturer and 25% liability against the (settling) lawn mower manufacturer. The plaintiff's mother was found not negligent. The plaintiff was awarded $2,600,000 in gross damages. The award included $100,000 in medical expenses; $500,000 in future loss of earnings and $2 million in pain and suffering. The case is currently on appeal.

Reference
Plaintiff's human factors expert: Dr. Carl Abraham from New York, N.Y. Plaintiff's engineer: Jerome Catz from Boca Raton. Plaintiff's vocational rehabilitation expert: John Williams from Fort Lauderdale. Plaintiff's disability expert: Anthony Dorto from Miami. Defendant's engineer: Kevin Breen from Fort Myers. Defendant's vocational rehabilitation expert: Cathy McVay from Jupiter. Defendant's neurologist: Robert Cullen from Miami. Defendant's plastic surgeon: John Grossman from Miami. Defendant's occupational therapy: Lorna Ramos from Miami.

Attorneys for plaintiff: Brett A. Weinberg and Sagi Shaked of Law Offices of Brett A. Weinberg in Coral Gables. Attorney for defendant: Ricardo J. Cata of Wilson, Elser, Moscowitz, Edelman & Dicker in Miami.

Commentary
The bulk of the damage award in this product liability action ($2 million) was designated to compensate the minor plaintiff for his pain and suffering. Graphic medical descriptions portrayed the procedure in which the boy's hand was attached to his abdomen for a month during a skin flap procedure. The jury could also see an obvious and disfiguring hand injury which the child will be required to cope with for the remainder of his life.

The defense maintained the injury was actually caused by contact with the mower's cutting blade, not the rotating part in the engine it manufactured. In this regard, the defense introduced medical notations referencing the blade of the mower as the cause of injury. The defendant's expert testified the rotating engine part in question was simply not capable of causing such a hand injury. However, the jury was unwilling to hold the medical notations against the plaintiff, reasoning that they were made under emergency circumstances and were subject to error.

To counter another main defense, the plaintiff proffered a common sense argument that, if the boy's hand had indeed encountered the cutting blade of the riding mower, there would have been amputations rather than the degloving or shredding injury suffered by the boy.

Plaintiff's attorney was also able to persuasively attack the credibility of the defendant's expert by arguing that this expert was unwilling to test the rotating engine part with his own hand.

Finally the plaintiff's expert (Dr. Abraham) argued that a safety guard, which would have prevented the injury, could have been provided for only $9.50. The guard was introduced as evidence and it is believed that the jury found this argument very persuasive.

The plaintiff requested $200,000 to settle the case prior to trial. The defendant offered $50,000. Expert- Dr. C. J. Abraham, safety engineer, warnings & instructions

Middlesex County, New Jersey
$2,000,000 RECOVERY DURING TRIAL - PRODUCTS LIABILITY - SWEATER MADE OF COMBUSTIBLE MATERIAL - SEVERE BURN INJURIES - PRODUCT IDENTIFICATION OF IMPORTED SWEATER AT ISSUE.

This was a products liability action in which the female plaintiff in her mid-30s contended that the sweater sold by the defendant retailer and distributed by the defendant importer, which was manufactured in mainland China, was defective because it was comprised of highly flammable material. The plaintiff contended that as a result, the sweater became engulfed in flames as she was cooking, resulting in unusually severe scarring which ran from her abdomen to the neck. The retailer had a contract for indemnity running from the defendant distributor and the recovery was paid by the distributor.

The plaintiff related that she was boiling water for macaroni when she leaned against the stove and that the sweater became engulfed in flames. The plaintiff's expert engineer related that the sweater was made of 55% ramie material and 45% acrylic. The expert maintained that these materials are highly combustible and would not pass U.S. government flammability requirements.

The importer, who would not have presented a flammability expert, denied that the plaintiff could identify the sweater as one imported by it, contending that similar sweaters that are manufactured in east Asia are imported by approximately 150 different distributors. After the sweater caught fire, the plaintiff had run outside and was helped by a neighbor who was a 75-year-old retired stockbroker and former volunteer fireman. The neighbor testified that he recalled a specific V-shaped fringe embroidery on the sweater. The plaintiff had obtained an exemplar sweater and the neighbor, who testified in discovery and trial, indicated that he could determine that this exemplar sweater was identical to the one worn by the plaintiff. The plaintiff established that the design on this exemplar sweater was copywritten by the defendant distributor and contended that it was clear that it had supplied the defective sweater in question.

The neighbor testified that when the plaintiff came running out of the house, the sweater was engulfed in flames. The neighbor maintained that the plaintiff "looked like a flaming Christmas tree." The witness testified that he tried in vain to smother the fire with his hands which were covered with gardening gloves, and that when this course was not successful, he ultimately pulled the sweater off. The neighbor contended that he then stomped on the sweater, but it continued burning until it was virtually consumed. The witness indicated that the sweater resembled a trick birthday candle that will not be blown out.

The plaintiff was an in-patient at the St. Barnabas burn center for two months. The plaintiff's burn specialists related that the plaintiff suffered second and third burns to 27% of her body which ran from the abdomen to under the chin. The experts contended that the recuperation was excruciating and that the plaintiff required relatively frequent debridements. The plaintiff was then treated for two years as an out-patient. The plaintiff contended that the severe scarring is permanent and that her breasts were virtually obliterated. The plaintiff's expert contended that although surgical implants are possible, the severe scarring will nonetheless be permanent. The plaintiff would have exhibited photographs to the jury. The plaintiff made no income claims.

The case settled after the testimony of the neighbor for $2,000,000.

Reference
Plaintiff's engineer & flammable fabrics expert: Carl Abraham,. Plaintiff's burn specialists: Hani Monsour and Sylvia Petrone from St. Barnabas Hosp., Livingston, N.J. Plaintiff's plastic surgeon: Bevery Friedlander of Short Hills, N.J.

This action was brought on behalf of the minor male plaintiff, seven years old at the time of injury. The plaintiffs claimed the boy's hand contacted a rotating engine part on a riding lawn mower being operated by his mother at the time. The defendant manufacturer and retailer of the riding lawn mower settled the plaintiffs' claims prior to trial for a total of $175,000. Trial proceeded against the defendant manufacturer of the mower's engine. The defendant denied the accident occurred as alleged by the plaintiffs and contended the boy actually contacted the cutting blade under the mower not a part of the engine.

The defense additionally argued the accident was caused by the negligence of the plaintiff mother, and the mother was named as a third-party defendant in the case.

The minor plaintiff and his family were visiting his grandfather in 1998. The plaintiff mother testified she was cutting the lawn at dusk, but while it was still light, and her son was walking behind the riding mower. The plaintiffs contended the mower stopped suddenly and the boy extended his dominant left hand to brace himself on the back of the machine. The plaintiff alleged the boy's hand contacted an engine part that was rotating at a speed of 3,600 revolutions per minute.

The part was covered by a screen, but the screen flew off upon contact, according to the plaintiff's claim.

The plaintiff's expert engineer testified the patent for the engine indicates that the part shreds. This expert opined the engine was dangerous and the high-speed rotating part should have been covered for safety. The plaintiff contended the defendant had developed a non-moving safety guard for the part in question, which could have been provided at a cost of $9.50. The plaintiff alleged the defendant failed to notify the lawn mower manufacturer or users of the machine that the cover was available. The plaintiff contended the guard should not have been optional, but should have been included with the engine.

The plaintiff's physicians testified that, although all of the minor plaintiff's fingers were saved, he sustained a disfiguring degloving injury to his left hand with a visible bulge between the thumb and index finger. The boy has a permanent loss of strength and function in his dominant left hand, according to his doctors. He was hospitalized for two weeks following the injury and underwent three surgeries, including a local pedicle flap procedure. The flap procedure involved transfer of skin from the bottom of the palm to the top of the hand.

The first flap surgery developed infection and a second pedicle flap was performed. Finally, the plaintiff underwent a surgery to remove the pedicle flap wherein the plaintiff's left hand was attached near his public groin for a month.

The plaintiff's plastic surgeon testified the plaintiff will require one to two additional cosmetic surgeries in the future at a cost of $15,000 to $20,000.

The plaintiff's vocational expert testified the boy will be precluded from many activities and certain employment opportunities involving manual dexterity, such as carpentry and mechanics, as a result of his permanent disability. The plaintiff's father is a carpenter.

The minor plaintiff missed a month from school and wore a glove on his left hand for a year. He failed the sixth grade the year of the accident. The plaintiff's vocational expert testified the boy needs a private tutor to catch up for time missed following the injury.

The defendant argued the boy must have contacted one of the cutting blades located under the lawn mower while it was running. The defendant's expert engineer testified he tested the engine and found it was not capable of causing hand injuries. One of the tests involved wrapping a towel around his hand and placing it in contact with the rotating engine part, according to the defendant's expert.

The defense also pointed to two notations in the plaintiff's medical records indicating that he was injured by the blade of a lawn mower.

The defense maintained it had sold some 900,000 of the engine models in question with no similar prior incidents.

The defendant also argued it simply followed the specifications requested by the (settling) mower manufacturer and had informed the mower manufacturer of the availability of the safety guard. The defendant contended that the mower manufacturer declined the optional safety guard.

The defendant's plastic surgeon opined that, if the plaintiff requires any future surgery, it would be limited to a single procedure. The defendant's vocational expert testified the plaintiff will be able to perform any manual activity with the aid of available assisting devices.

After a six-day trial, the jury found the defendant negligent and also found that the engine was defective. The jury apportioned 75% liability against the defendant engine manufacturer and 25% liability against the (settling) lawn mower manufacturer. The plaintiff's mother was found not negligent. The plaintiff was awarded $2,600,000 in gross damages. The award included $100,000 in medical expenses; $500,000 in future loss of earnings and $2 million in pain and suffering. The case is currently on appeal.

Reference
Plaintiff's human factors expert: Dr. Carl Abraham from New York, N.Y. Plaintiff's engineer: Jerome Catz from Boca Raton. Plaintiff's vocational rehabilitation expert: John Williams from Fort Lauderdale. Plaintiff's disability expert: Anthony Dorto from Miami. Defendant's engineer: Kevin Breen from Fort Myers. Defendant's vocational rehabilitation expert: Cathy McVay from Jupiter. Defendant's neurologist: Robert Cullen from Miami. Defendant's plastic surgeon: John Grossman from Miami. Defendant's occupational therapy: Lorna Ramos from Miami.

The female plaintiff contended that the defendant's home insect fogger or roach bomb, marketed as "La Bomba," was defective because it utilized propane as a propellant. The plaintiff contended that alternative, non-flammable propellants were available and should have been utilized. The plaintiff related that she had turned off the pilot light for the top of her range, but not for the oven because she could not locate it. The plaintiff contended that several minutes after the fogger was released, an explosion and fire occurred.

The plaintiff had also included a failure to warn count, alleging that the warnings were inadequate. The Court dismissed this aspect, holding that the federal EPA, with which the defendant complied, would supersede state law.

The defendant denied that the product was defective and contended that propane is commonly used as a propellant in the industry. The defendant further contended that the sole cause of the incident was the misuse by the plaintiff, who failed to extinguish the oven pilot light. The defendant also maintained that the label had warned against operation in the vicinity of a flame. The plaintiff contended that any misuse was highly foreseeable and should not absolve the defendant of liability.

The plaintiff contended that she suffered second and third degree burns to both legs with the more serious injuries suffered by the right leg. The plaintiff contended that she suffered extensive scarring and required skin grafts. The plaintiff further contended that she sustained a post-traumatic stress disorder which will cause permanent anxiety and depression.

The case settled during trial for $300,000.

Reference
Plaintiff's engineer & warnings expert:: Dr. Carl J. Abraham,. Plaintiff's plastic surgeon: Cecil D. Grimes, Jr. from Brooklyn. Plaintiff's psychotherapist: Bonnie Eaker-Weil, Ph.D.from Manhattan.

Attorney for plaintiff: Cornelius W. Caruso, Jr. of Ravich, Kosater, Tobin, Oleckna, Reitman & Greenstein in Rahway, N.J.

Commentary
The defendant presented no expert on flammability to dispute the plaintiff's position that the sweater was highly combustible, arguing that the plaintiff could not establish that the defendant had imported the particular sweater in question, stressing that some 150 distributors import similar sweaters from this area of the world. The plaintiff effectively countered this position by obtaining an exemplar of the sweater which the neighbor could identify as having a design with identical embroidery as the subject sweater, and further establishing that the defendant had a copyright on this design, stressing that it was clear that it had imported the sweater in question. Regarding damages, the defendant had made no offer before trial and the $1,000,000 offer after opening statements was rejected. The defendant offered $2,000,000 after testimony of the neighbor which established product identification and also described the highly traumatic nature of the incident, in which he could not extinguish the flames until the sweater was consumed by the fire after it was removed. Plaintiff's counsel relates that although it was believed that the unusually severe nature of the permanent scarring could well have prompted a larger award, the jury appeared to be relatively conservative and feared that the jury could consider an award of less than $2,000,000 significant compensation, prompting an acceptance of this settlement.

In this action the 45-year old male plaintiff contended that on October 30, 1982 he purchased a bottle of the defendants' soft drink, which he drank the following day, from the defendant store. The plaintiff asserted that he drank a small amount and became violently ill. The plaintiff contended that he vomited and suffered aspiration damage to the interior of his right lung. The plaintiff alleged that he suffered several bouts of pneumonia and subsequent cardiac problems as the result of the incident. The plaintiff maintained that there had been iodine in the bottle and that it caused his injury. The plaintiff asserted that the bottles underwent sanitation with a Dussan Sanitizer by which a solution containing iodine is injected into the bottles and the then emptied by turning the bottles upside down. The plaintiff asserted that there is no rinsing process between the sanitation process and the bottles being filled with soda. The plaintiff argued that the defendant soft drink company maintained a measure of control over the bottling process and that it failed to properly supervise and maintain the process. The plaintiff maintained that the defendant bottling company manufactured and sold a defective bottle of soft drink. The plaintiff also asserted that the defendant store sold a defective bottle of soft drink. The plaintiff's expert chemist and engineer testified that tests performed by the Health Department Poison Control Center's toxicology lab and tests performed by the defendant soft drink company revealed that the presence of iodine. This expert asserted that if Dussan Sanitizer is added to soft drink, the result would be the solution contained in the subject bottle. It was also asserted that the capping process on the subject bottle would indicate if someone had tampered with the bottle. The plaintiff's expert in pulmonary medicine asserted that the plaintiff sustained scarring on his lung from aspiration caused by vomiting the iodine solution. This expert contended that the plaintiff suffered a 40% diminished lung capacity. The defendant soft drink company maintained that the bottle had been tampered with and someone had injected the solution into the bottle after its arrival at the defendant store. The defendant bottling company maintained that the subject occurrence was an isolated incident and that the plaintiff exaggerated his injury. The owner of the defendant store contended that only one customer, who had purchased a bottle of the defendants' soft drink, had gone near the bottles from the time they arrived at the store until the plaintiff purchased the subject bottle. The jury found for the plaintiff. The defendant soft drink company was found 10% negligent and the defendant bottling company 90% negligent. The defendant store was found not negligent. The jury awarded $25,000 in damages. Plaintiff's had post trial motions to set aside the damages award as inadequate and for a new trial on damages are pending. The defendant soft drink company's motion for a new trial on liability is also pending.

Reference
Plaintiff's expert chemist and engineer: Dr. Carl Abraham,. Plaintiff's expert in pulmonary medicine: Dr. John Vechionne of Brooklyn.

Cetta vs. Coca-Cola Co., Coca-Cola Bottling Co. of New York, Inc., and R.J.B. Bagel Corp. Judge Gerald Held, 5-1-90. Attorney for plaintiff: Alan Sirlin in Brooklyn; Attorney for defendant: George Tompkins in Manhattan.

This was a products liability action brought on behalf of the minor plaintiff, age 13 at trial, who suffered severe burn injuries when the undershirt which he was wearing, manufactured by the defendant, caught fire. The plaintiff contended that the shirt contained chemical properties which rendered it extremely dangerous from a flammability aspect. The plaintiff suffered 16% full-thickness burns to his face, neck, chest and abdomen. The plaintiff was three years old at the time of the subject accident.

The accident occurred when the plaintiff lit his outer 100% cotton flannel shirt with a cigarette lighter which was accidentally left within his reach by his grandfather. The ignition of the outer shirt caused the 50% cotton/polyester "Underoos" brand undershirt, manufactured by the defendant, also to ignite with burning and melting properties that were extremely damaging to the plaintiff's skin and deeper tissues. The plaintiff's fabric flammability experts testified that the undershirt worn by the plaintiff at the time of the incident, was defective and unreasonably dangerous in that it was not treated with flame retardant chemicals. The plaintiff's experts contended that had the shirt been properly treated, the plaintiff would not have suffered such severe burn injuries. The plaintiff contended that it was foreseeable that the defendant's undershirt would be used as sleepwear and that the shirt failed to comply with Federal Standards pertaining to flammability of sleepwear. The plaintiff suffered 16% full thickness burns to his face, neck, chest and abdomen. He was required to undergo numerous surgeries and is left with severe disfigurement and an acute emotional reaction manifesting in serious behavioral problems. The plaintiff's emotional injury was testified to by an expert social worker who has treated the plaintiff in the public school special education setting.

The defense contended that the subject shirt comported with the minimum Federal standards pertaining to flammability of underwear. The defendant maintained that the undershirt was not sleepwear and, therefore, the more stringent Federal requirements for sleepwear should not be applied. The defendant further asserted that at the time of the accident, in 1980, there was no underwear manufactured which contained the flame retardant chemicals advanced as necessary by the plaintiff's experts. In addition, the defense maintained that the plaintiff's mother would not have purchased the undershirt if it had been treated with flame retardants, since these protective chemicals made the material less comfortable. Finally, the defendant maintained that the plaintiff's injuries were caused by the negligence of the plaintiff's grandfather who left the cigarette lighter within the child's reach and failed to properly supervise him. The jury found for the plaintiff and returned a verdict of $2,500,000, including $1,500,000 past and present damages and $1,000,000 future damages.

Reference
Plaintiff's experts in flammable fabrics/flammability retardancy: Dr. C.J. Abraham of Great Neck, N.Y.
Plaintiff's treating physician: Irving Feller from Chelsea, Mi.
Plaintiff's expert MSW: Sandra Walczak from Mi.

Populis vs. Union Underwear Company, Inc. Case no. 90-CV-71236; Judge Bernard A. Friedman, 12-91.

Attorney for plaintiff: Samuel H. Pietsch of Matz & Rubin in Farmington Hills, Mi.

This was a products liability action in which the infant plaintiff aged 26 months at the time of the incident, who was a child with profound hearing loss, contended that the hearing aid distributed by the defendant and manufactured by the parent foreign company, was defective in that the compartment holding the battery did not contain sufficient tension, enabling the child to remove the battery and swallow it. The plaintiff contended that as a result, the infant plaintiff required a laparotomy to remove the battery which surgery caused the child to develop abdominal adhesions resulting in the necrosis and removal of 6 inches of the small intestine and additional adhesions which occurred as result of the surgeries which place her at greater risk in the future for further adhesions and required surgery. The plaintiff further contended that the defendant should have provided warnings advising a parent that a child could open the battery compartment and that such advisements would have permitted the parents to take the simple step of securing the compartment with rubber bands or tape. It was undisputed that hearing aids designed for adults would differ from the instant one only in the size of the mold which would fit in the ear. The plaintiff's expert maintained that the defendant could have easily and simply placed a screw type device in the compartment to prevent a child from opening it. The plaintiff further contended that the defendant could have increased the tension on the compartment spring which was present, which, according to the expert, was insufficient. The hearing aid was passed among the jurors who had the opportunity to observe the amount of tension on the spring. The defendant maintained through its engineering expert that the hearing aid as designed conformed with all industry standards. The plaintiff countered that since the manufacturer was one of the major hearing aid manufacturers in the world, they had great influence in the standards which were set and that in view of the obvious hazards, the hearing aid was nonetheless defective. The plaintiff elicited a concession from the defendant's president that audiologists and other specialists who work with children, had, for some time prior to the accident, often taped the battery compartment and the plaintiff argued that it was obvious that the defendant should have provided warnings to parents who would not be as aware of the hazards as professionals in the field. The plaintiff's treating general surgeon maintained that the surgery was required to remove the battery and that all abdominal surgery carries the risk of abdominal adhesions, which occurred in the instant case, causing necrosis of 6 inches of the small intestine necessitating a second operation. The expert maintained that as a result of the trauma of the second surgery, additional adhesions would be likely to form, placing the plaintiff at greater risk of subsequent surgery. The expert maintained that such operations carry a significant mortality rate of 10 to 20% and the defendant presented an expert who maintained that the chances of future surgery is minimal and the chance of death from future surgery would be minimal. The defendant's plastic surgeon conceded that the scar was permanent and that the 6 inch abdominal scar would increase as the child grew. The jury found for the plaintiff and awarded $750,000 to the infant. They further found that the mother was 15% negligent and the award to the mother for medical expenses was reduced by this finding to $11,796.51.

Reference
Plaintiff's expert engineers: Dr. Carl Abraham, Plaintiff's expert pediatric surgeons: David Schwartz and Henry So, both from New Hyde Park. Defendant's expert engineer with extensive hearing aid industry experience: Samuel Lybarger from Pa. Defendant's expert gastroenterologist: Ivan Kahn from Manhattan. Defendant's expert plastic surgeon: Howard Cooper from Manhattan.

COMMENTARY
The defendant contended that the hearing aid conformed in all respects to industry standards and the plaintiff effectively countered by making the logical argument that although the hearing aid would be safe for adults, the defendant should have, in view of the fact that children as well as adults would be using the device, taken the simple step of either utilizing a spring which would provide sufficient tension to prevent a child from opening the battery compartment, or at the very least, provide parents with advisements to enable them to protect their children by securing the battery compartment with a rubber band or tape. The plaintiff underscored the need for such warnings by establishing that professionals working with hearing impaired children had utilized tape to secure the compartment, and by arguing that parents would be less aware of the potential hazard than professionals in the field. Regarding damages, the plaintiff emphasized that as a result of the injury and surgery, she was at higher risk for the remainder of her life of suffering additional adhesions which could well necessitate further surgical interventions. Additionally, the plaintiff argued that the abdominal scar which would not be subject to revision, would, when the infant plaintiff reached maturity, cause great embarrassment and stressed that since the child suffered preexisting deafness which would be likely to, in and of itself, cause social difficulties, the superimposition of the scar would cause additional embarrassment to an already afflicted individual. Finally, the plaintiff poignantly emphasized that because of the infant plaintiff's tender years, she had not, as of the time of the injury, learned sign language and that her parents and physicians could not communicate the nature of her injury to her and that the child was subject to the trauma without the emotional comfort which might have been provided if she could communicate.