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ARTICLE ID 31083

$________ - PRODUCTS LIABILITY - ALLEGED NEGLIGENT DESIGN OF FORK-LIFT - FAILURE TO AFFIX ADEQUATE WARNINGS IN PLAIN VIEW ON THE FORK-LIFT - BREACH OF WARRANTY - PLAINTIFF CRUSHED BY ________ POUND BAIL OF CARDBOARD WHICH ROLLED OFF FORK-LIFT AS IT WAS LIFTED - TRANSECTION OF SPINE - PARAPLEGIA.

Middlesex County, Mass.

This was an action brought by the 19-year-old laborer who was rendered paraplegic while in the process of operating a Caterpillar fork-lift moving ________ pound cardboard bails when one of the bails rolled over and crushed him, resulting in the transection of his spine. The plaintiff contended that the defendant fork-lift manufacturer failed to provide adequate warnings affixed directly onto the fork-lift itself. The plaintiff additionally contended that the removeability and the interchangeability of the two safety features provided, namely, the overhead guard and the backrest extension, created a hazard.

At the time of the accident, the plaintiff was operating the fork-lift with the safety guard removed. The guard had been removed to enable performance of a prior task involving the loading of bails from a ramp to a tractor/trailer truck. The previous operator was unable to get the bails into the truck because the top of the overhead guard attached to the fork-lift kept hitting the truck. Consequently, the overhead guard was removed at that time and was never replaced. The cardboard bails which the plaintiff was in the process of moving at the time of the accident measured three feet by four feet by six feet, and weighed approximately ________ pounds each. The backrest extension safety feature used to secure the load was inadvertently raised too high, permitting the bail to roll backwards onto the plaintiff operator.

The plaintiff’s engineering expert testified that the warning decal placed on a plate to the right of the operator was insufficient and that the defendant manufacturer should have affixed a warning in plain view of the operator advising against lifting a load above a certain point. This expert related that it was foreseeable that the guard could be removed simultaneously with the backrest extension inadvertently being set at an improper height and that the interchangeability of the safety features in this regard constituted a hazard. The defendant’s human factors engineer countered that the warnings provided were adequate and that the subject accident could easily have been prevented with adequate training. The defendant contended that the hazard of operating the fork-lift without the guard in place and without setting the backrest extension at the proper level was open and obvious. The defendant further maintained that the employer’s negligence in failing to replace the guard after removing it was a superseding intervening cause of the accident.

The plaintiff’s expert consulting neurosurgeon testified with regard to the paraplegic injury suffered by the plaintiff resulting from the complete transection of his spine, as well as the future medical and occupational needs required by the plaintiff. Specifically, this expert related that the spinal transection has left the plaintiff paralyzed from the rib cage down with a complete loss of bowel and bladder control requiring catheterization. This expert maintained that although the plaintiff’s condition has, for the most part, stabilized, he remains at an increased risk for the development of infection due to the catheterization. The physician further testified as to the continuing expenses incurred by the plaintiff for maintenance of decubitus ulcers which require treatment by an internist and plastic surgeon, and as to the continuing expense for his catheterization equipment.

The plaintiff estimated the cost of his regular future medical needs to be $________ to $________ per year, based upon past experience. The plaintiff presented special damages, including medical bills of $________ and past lost wages of $________. The plaintiff’s expert actuary projected lost earning capacity of $________. The jury found for the plaintiff and returned a verdict of $________. The case is presently on appeal. Plaintiff’s expert mechanical engineer: Igor Paul from MIT. Defendant’s expert human factors engineer: Alan Dorris from Atlanta, Ga.

Bavuso vs. Caterpillar. Judge Katherine Liacos Izzo, 10-88.

Attorney for plaintiff: Kenneth A. Pollenz of Boston, Mass.; Attorney for defendant: Donald Wood of Boston.

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