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ARTICLE ID 32624

$________ - PRODUCTS LIABILITY - DEFECTIVE DESIGN OF BACKHOE - INADEQUATE TOE GUARD - SEVERE CRUSH INJURIES TO FOOT - REFLEX SYMPATHETIC DYSTROPHY.

Burlington County

This was a products liability action in which the plaintiff, a civilian employee of the U.S. Army, contended that the defendant’s backhoe/loader was defectively designed due to an inadequate toe guard which was included in order to protect workers’ feet, but which, the plaintiff maintained, was placed too close to the edge of the operator’s area. The plaintiff claimed that as a result, he suffered severe crushing injuries to his foot when the backhoe arm, which rotates ________ degrees, struck the plaintiff’s foot while it was protruding slightly from the operator’s area. The plaintiff contended that he developed RSD which will cause severe and unrelenting pain and permanently prevent him from working. The plaintiff also maintained that he was previously very active in the community as a volunteer firefighter and emergency squad member and has been forced to give these activities up.

The plaintiff maintained that because an operator must continually move the boom of the backhoe to dispose of dirt, the backhoe arm poses a hazard to the operator’s foot and that the operator must be very careful to avoid extending his foot outside of the operator’s area. The plaintiff contended that after operating this machine for several hours, a worker’s foot would often become fatigued and/or cramped, heightening the risk of the foot extending too far out of the operator’s area. The plaintiff maintained that although the nine-inch high metal foot rest would be in a safe area if a worker’s foot did not extend beyond it, there was an absence of any guarding to prevent an operator’s foot from venturing beyond the area of safety. The plaintiff’s expert engineer contended that the defendant should have used a barrier guard to ameliorate such hazards. The plaintiff’s expert also contended that ANSI standards relating to protecting workers from pinch points were violated.

The defendant would have contended that the guarding advanced by the plaintiff was hazardous because it would compromise the ability of the worker to see the area in which he was digging.

The plaintiff countered by establishing that prior to the manufacture of the subject backhoe, the defendant had offered a different design to the Army which entailed a much taller guard comprised of metal mesh, accomplishing the safety goal of protecting the worker’s foot while giving the worker an unobstructed view. The defendant also contended that the ANSI standards discussed by the plaintiff dealt with factory-use equipment, rather than mobile equipment. The plaintiff would have pointed to a manual, obtained after a discussion with the plaintiff’s attorney in a prior Mercer County case involving the defendant, in which it discussed the applicability of such standards to mobile equipment. The plaintiff would have argued that based upon this evidence, the defendant’s position should be rejected.

The plaintiff related that he suffered severe crush injuries to his foot and was treated in the emergency room. The plaintiff maintained that the pain initially improved to the extent that he was able to return to work 3 1/2 months later. The plaintiff contended, however, that the pain began to increase severely and that within several months, he was unable to continue working in his position. The plaintiff’s neurologist contended that based upon symptoms such as color and temperature changes and hypersensitivity to relative mild fluctuations in temperature, the plaintiff sustained RSD, which is permanent in nature. The plaintiff’s physician contended that the plaintiff suffers extensive pain except for those times when he takes significant amounts of pain medication which leaves him very fatigued.

The defendant denied that the plaintiff’s injuries were as severe as claimed and questioned his claims regarding RSD. The plaintiff would have established that in the approximate 5-6 year period between the accident and scheduled trial, his foot and ankle had actually suffered significant and readily observable atrophy. The plaintiff would have also argued that the jury could well determine, from this evidence, that his claims regarding his injuries were valid.

The plaintiff contended that he is permanently unemployable. The plaintiff also indicated that he was formerly very active, had been a member of the Volunteer Fire Dept. since he was 18 years of age and had also been on the ambulance squad for many years.

The plaintiff contended that he has been forced to give up such activities. The plaintiff is married and has no children. The case settled after jury selection and immediately before opening statements for $________.

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