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ARTICLE ID 31696

$________ - PRODUCTS LIABILITY - INADEQUATE WARNINGS - AMPUTATION OF HALF OF THUMB ON DOMINANT HAND WITH AVULSION OF ENTIRE TENDON - TENDON INJURY.

Bergen County

The female plaintiff, age 42 at trial, contended that the defendant, which manufactured a conveyer system under specifications provided by the employer, a frozen pizza manufacturer, failed to provide sufficient warnings regarding the dangers of inserting a hand into the area of a transfer bar which would carry product from one conveyer to another. The plaintiff contended that as a result, she suffered the amputation of approximately 1/2 of the dominant thumb and avulsion of the entire flexor tendon which leads from the thumb and forearm controlling the movement of the thumb when she attempted to extract product which had become clogged in the area. The defendant maintained that the employer had installed the transfer bar and the plaintiff further contended that the defendant should have provided adequate instructions as to utilizing a safe bar that would protect workers from the potential hazards of the nip point, maintaining that such instructions were especially necessary in view of the evidence that the employer would be installing this device, which was necessary to transport product from one conveyer belt to another.

The plaintiff related that when the product became clogged, it interfered with the functioning of the conveyer system and that she attempted to rectify the problem by extracting the food stuff causing the clogging, whereupon she suffered the injury. The conveyer belts were supplied with warning signs which read: "Caution pinch point." The plaintiff’s expert engineer contended that such advisements were inadequate and that the word "Danger" accompanied by a visual portrayal of a severed hand was more appropriate. The plaintiff’s expert further contended that the advisements should have been placed on a white background with bright red lettering and maintained that the yellow lettering on a white background would not call sufficient attention to the potential dangers confronting an operator. The plaintiff only spoke Spanish and the evidence revealed that half of the employer’s work force was Spanish speaking only. The plaintiff’s expert further contended that the defendant, who had conferred with the employer, had visited the plant prior to production, and had also installed the system, should have been aware of the extensive number of Spanish speaking employees, contending that if warnings were not placed in Spanish, it was especially necessary to provide a visual warning.

The plaintiff’s expert further maintained that a transfer bar would be essential to the operation because the product would fall to the floor upon reaching the end of one conveyer belt unless such a transfer bar, or guide bar, was utilized. The plaintiff contended that the defendant, which indicated that it was aware that the employer was placing this device, should have either provided a transfer bar with appropriate safeguards, or provided instructions as to the proper type of transfer bar which contained adequate safeguards. The plaintiff also elicited testimony during cross-examination of the defendant’s principal that he was personally aware of methods of safeguarding the transfer bar.

The defendant’s expert engineer contended that the warnings signs were adequate. The defendant further contended that it had offered appropriate transfer bars as options, but that the employer had specifically instructed them not to install any electrical safeguards on the machine because the employer would have its own workforce do so. The plaintiff countered that the defendant could not delegate its responsibility to provide a safe product to the employer and should have taken appropriate steps to ensure that its product was not hazardous to the workers and provided instructions as to the proper type of device and/or provide more appropriate warnings to the ultimate user.

The plaintiff contended that when her hand became caught, she attempted to extract it and that the severe avulsion injury and partial amputation occurred. The plaintiff’s treating hand surgeon related that reattachment surgery was ruled out because of the severity of the damage. The expert contended that the plaintiff continued to suffer extensive pain because of the continuation of nerve impulses to the severed ends of the nerves which could not transmit such impulses. The physician related that he performed surgery which helped to some degree, but contended that the plaintiff will permanently suffer some pain which is significantly heightened upon exposure to cold weather.

The hand surgeon further maintained that the plaintiff will permanently experience a burning sensation in the arm as a result of the injury. The physician also contended that the remaining stump is virtually useless and that because of the importance of the thumb, the injury has, in affect, deprived the plaintiff of 50% of the use of the dominant hand. The plaintiff contended that she has attempted to utilize her left, non-dominant hand for many tasks and that since this hand is not as strong and since her dexterity in this non-dominant hand is not as good, she has suffered injury on occasion when she drops items such as a pot of hot water. The plaintiff did not contend that she sustained permanent injury in such episodes.

The plaintiff’s hand surgeon was also permitted to testify over objection that the plaintiff suffered a significant psychological reaction which impaired her self image. The physician contended that such reactions are common in patients he treats and occurs with particular frequency with women patients. The physician contended that such difficulties would probably continue permanently due to the permanent and obvious nature of the physical deformity. The plaintiff has been retained by the employer as a quality control inspector and the plaintiff, who is currently earning more than she had at the time of the accident, made no future wage claims. The case was initially tried in October, ________ and resulted in a plaintiff’s verdict for $________.

A new trial on damages only was held in April, ________, and this damages jury awarded $________. The defendant’s post-trial motions were denied.

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