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ARTICLE ID 34053

$________ - PRODUCTS LIABILITY - MACHINE GUARDING - FAILURE TO INTERLOCK DOUGH MIXING MACHINE TO PREVENT OPERATION UPON REMOVAL OF COVER - TRAUMATIC AMPUTATION OF 1/2 OF THUMB AND ENTIRE INDEX, MIDDLE AND RING FINGERS ON THE DOMINANT HAND - DUTCH MANUFACTURER DECLARES BANKRUPTCY IN EARLY ________'S - NO RECORDS OF SALE MANY YEARS BEFORE ACCIDENT - PLAINTIFF CONTENDS PRODUCT DISTRIBUTED BY DEFENDANT WHO WAS ALLEGEDLY SOLE U.S. DISTRIBUTOR OF MANUFACTURER'S PRODUCTS.

Bronx County

The then 19-year-old plaintiff working at a cannoli manufacturing facility contended that the defendant’s dough mixing machine was defectively designed because of the absence of an interlock to prevent the blades on the very large machine from moving if the lid was removed from the large bowl. The plaintiff contended that he suffered the amputation his index, middle and ring fingers at the base of his right, dominant hand, as well as of 1/2 of the thumb when the blades of the dough machine commenced moving as the plaintiff was attempting to extract dough after it was mixed.

The machine would initially be used to mix the product and when this aspect was completed, the bowl would tilt downwards and the blades run in the opposite direction to extract the very thick and heavy dough.

On the day in question, the machine would not tilt downwards and the plaintiff maintained that the only practical way of removing it when the machine was in the upright position was to extract it by hand. The machine was manufactured in Holland in the 1950s by a company that declared bankruptcy in the early 1980s. The plaintiff contended that the machine was supplied by the defendant distributor after importing it from the manufacturer.

The defendant distributor denied being in this product’s chain of commerce and there were no records relating to the product’s import. The defendant distributor had successfully moved for summary judgment, arguing that the plaintiff could not establish that it was involved. The Appellate Division held that a question of fact existed and reversed the case. This article will delve into both the plaintiff’s proofs that the defendant had distributed the machine and the proofs regarding the alleged defect and damages.

A new manufacturing company had been started by the son and daughter-in-law of the manufacturer sometime after the bankruptcy. It was undisputed that this new company was not a successor corporation to the manufacturer. The plaintiff contended through the testimony of the first company owner’s daughter-in-law, who was fluent in English, that during her training, she was advised that prior to the bankruptcy, her father-in-law had used the defendant as its sole distributor in the U.S. The defendant objected to the introduction of this evidence on hearsay grounds and the plaintiff successfully argued to the court that this information gathered in the normal course of business, and in the process of the witness learning about customers and potential customers, should be admissible. The witness further testified that she had personally observed documents sent to the defendant during this period and had not observed any documents to other distributors in the U.S.

The plaintiff also maintained that in the preliminary investigation, the vice president of the employer had admitted that the company purchased the machine from the defendant in the 1970s. Neither the employer nor the defendant had any records dating back to the 1970s, and the employer’s vice president recanted his prior statement in his deposition, saying the machine could have been purchased elsewhere. The plaintiff argued that based upon the testimony of the prior owner’s daughter-in- law and the employer’s vice president’s prior statement, it was highly likely that the defendant sold the machine to the employer.

The bowl was approximately two feet wide and two feet tall and sat within the large mixing machine that was six feet high. The plaintiff maintained that because of the heavy consistency of the dough, it was necessary to reverse the blades and tilt the bowl to extract the dough. On the day in question, the tilting mechanism was malfunctioning and the plaintiff maintained that in order to obtain the dough from the machine after it was mixed, it was necessary to run the blades in reverse while the bowl was in the upright position and extract the dough by hand as it reached the top, and before it fell back into the bowl. The plaintiff’s engineer related that industry standards promulgated in ________, ________ and ________ required that power could not be applied to the blades unless the bowl was covered. The plaintiff maintained that the machine was clearly defective.

The defendant maintained that when the third-party employer obtained the machine, it did not contain a lid and that a cover was subsequently incorporated without an interlocking mechanism, arguing that the machine was materially altered and that the employer had very extensive culpability. The plaintiff maintained that the machine was defective because of the absence of an interlocking lid when sold to the employer and that the defendant should be liable for such defect, irrespective of the actions of the employer.

The defendant also maintained that the plaintiff was comparatively negligent by inserting his hands into the open bowl. The plaintiff countered that the facility’s operation of making cannolis could not continue unless the dough was extracted. The plaintiff maintained that economic necessity mandated that he perform his job and that his actions should be judged accordingly.

The plaintiff sustained the traumatic amputation of 1/2 of the thumb on the dominant hand, as well as the entire index, middle and ring fingers on this hand. The plaintiff was hospitalized for four days. The plaintiff contended that he continues to suffer extensive pain and difficulties with everyday tasks. The plaintiff also contended that he is very self conscious of the cosmetic deficit.

The plaintiff, who has not worked since the accident, related that he had a limited education in his native Mexico in which he completed the ninth grade only. The plaintiff, who is certified as an automobile mechanic maintained that he clearly cannot do that work. The plaintiff argued that as a practical matter, he is permanently unemployable. The jury found that the defendant had distributed a defective machine that resulted in the hand injuries and declined to assess any comparative negligence against the plaintiff. The jury assessed 25% liability against the defendant and 75% against the third party defendant employer. They then awarded $________, including $________ for past lost wages, $________ in past medical expenses and $________ for past pain and suffering since the happening of the accident nine years earlier. They also awarded $________ for future pain and suffering, $________ for future medical expenses, $________ for future rehabilitation expenses and $________ for future income losses.

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