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Hudson County, NJ

In this product liability action, plaintiff, age 35, was employed as a machine operator at a recycling facility. He suffered amputation of four fingers after his dominant right hand became caught in a "nip-point" created by a chain and sprocket that was part of a machine, which separated metal from other debris. The plaintiff alleged that the machine was activated while he was attempting to remove material that had become caught in the chain. The plaintiff contended that the machine was defective because it lacked a guard that would have prevented workers from accessing the nip point and also prevented debris from getting caught in the chain and sprocket. The plaintiff also maintained that the machine should have had an overriding shut- off switch in the proximity of the nip point to prevent remote activation.

The plaintiff’s employer operated a large recycling facility that received trash from curbside pickup throughout the five boroughs of New York. The machine in question was part of a "transfer system" that conveyed commingled trash throughout the facility and separated the material based on composition and size. The evidence disclosed that the original transfer system, which was installed by the defendant in ________, lacked the ability to separate metal or ferrous material automatically and such materials had to be removed manually by employees "picking" through the stream of material.

In ________ the employer sought to modify the existing system to enable it to remove metal items automatically by integrating a metal separation component that utilized a revolving magnetized metal cylinder or "drum magnet". The drum-magnet had a sprocket, approximately three feet in diameter, attached to its side and revolved using a chain connected to five-horse power motor. The chain and sprocket were shielded on top by a piece of angle iron but otherwise remained exposed and accessible.

The plaintiff contended that the employer obtained the same contractor, the defendant, to supervise the modification and that the defendant should be considered a manufacturer under the Products Liability Act. The defendant denied that it designed the drum-magnet component and maintained that it was hired solely to serve as a project manager, coordinating the activities of several subcontractors as directed by the employer.

The plaintiff countered that the Act defines a manufacturer as one who designs, creates, formulates or constructs any product or component. The plaintiff maintained that the defendant had the right to authorize the manner in which any work, including that on the section in question, was performed by subcontractors. The plaintiff maintained that in view of this control, it was clear that the defendant should be considered a manufacturer under the Act.

The defendant further contended that irrespective of the question of whether it should be considered a manufacturer, the machine was not defective. The defendant pointed out that the drum-magnet was elevated ten feet above ground and was therefore "guarded by location" under OSHA standards.

The plaintiff countered that the machine would frequently become jammed when materials leading to the drum overflowed, becoming entangled with the drum. The evidence disclosed that this occurred several times per shift and was dealt with by employees standing on a beam and using a broom stick, or similar device to free up the drum. On the day in question, the jam occurred on the other side of the drum when material overflowed into the chain and the plaintiff climbed the beam and attempted to free up the sprocket.

The evidence also disclosed that the components of the machine had separate power sources and the defendant maintained that the plaintiff could readily "lock out and tag out" the machine before climbing the beam and attempting to free up the chain by hand. The defendant contended that the plaintiff’s failure to do so constituted a superseding, intervening act that broke causation. The plaintiff contended that it was foreseeable that that a worker attempting to quickly discharge his duties would climb up the beam and attempt to free up the chain as the machine was activated.

The plaintiff contended that in many of the prior incidents involving the drum being jammed, workers did not lock out and tag out the machine. The plaintiff contended that it was foreseeable that a worker would not do so when attempting to free up the chain beyond the drum as well.

The plaintiff suffered crush injuries which required multiple surgeries in an effort the save the fingers on his dominant, right hand. The pinkie, ring and middle fingers were amputated within days of the accident. After several failed surgeries, the plaintiff’s index finger was amputated approximately eight months after the accident. The plaintiff has not returned to work and contended that in view of his training, talents and inclinations, his opportunities for alternative work are very limited.

The plaintiff also contended that he has great difficulties with everyday activities otherwise taken for granted. The plaintiff would have played a video depicting him attempting to engage in activities such as buttoning a shirt or putting items into a refrigerator and would have argued that this evidence underscored his contentions.

The case settled prior to trial for $________.

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