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Bronx County, NY

This case involved a 44-year-old plaintiff, who was engaged in assisting his employer in applying lacquer sealer as part of the renovations of an apartment in a multiple dwelling unit owned by the employer. A flashback fire occurred and the plaintiff suffered second and third degree burns over 30% of his body, including his head, arms and torso. The plaintiff contended that in this work-place situation, OSHA regulations, which require that use of such type of substances be made only if adequate ventilation was present, applied.

The plaintiff maintained that the because the flash point of the vapors is -4 º, the risk of a flashback fire is particularly great and that in order to minimize such risks, the product should only be used in conjunction with specialized “shock-proof” ventilation which would measure the concentration of the vapors as well as proving ventilation itself. The plaintiff maintained that in the absence of such equipment, there is no way to determine if the vapors were building to a dangerous level and could be ignited by an event as otherwise as innocuous as an electrical appliance turning on and that the defendants retailer and distributor should have provided such warnings.

The product was manufactured by a company that is a “Bulk supplier” who ships the product to the distributor in 55 gallon drums. The bulk supplier’s duty was limited to providing warnings to the distributor regarding foreseeable uses of the product. The plaintiff brought a federal action against the manufacturer. The manufacturer’s motion for summary judgment had been denied and this aspect then settled for $________.

The plaintiff established that in ________, New York City passed a fire rule that provided that substances with a flashpoint below 80 °F degrees shouldn’t be used indoors in and that tags should be affixed to the product so informing users. The plaintiff contended that neither the New York distributor nor the retailer placed such tags. The defendants, retailer and distributor, contended that the manufacturer/bulk supplier who settled in the federal case should have provided any required warnings. The plaintiff’s experts had concluded in discovery in the federal case that such indoor use was foreseeable and contended that based on this factor, it was clear that the manufacturer bore responsibility.

The plaintiff suffered second and third degree burns over 30% of his body, including the head, arms and torso. He spent four months in the hospital and ten months in a rehabilitation facility. The plaintiff maintained that he required frequent debridements which were very painful despite the daily administration of pain killing medication. The plaintiff also suffered hypertrophic ossification of the left hip and right elbow. The plaintiff’s burn expert would have contended that such ossification is a known sequela to severe burn injuries. The plaintiff further suffered Curling’s ulcer, which the expert maintained is another complication of the burn injuries. The plaintiff maintained that he required surgery in which approximately a foot of the small bowel was removed and that the plaintiff will permanently suffer significant GI complaints.

The plaintiff contended that the severe scarring is permanent in nature. The plaintiff further contended that he is unemployable.The jury found the retailer 60% liable, the distributor 40% responsible and declined to assess any liability against the manufacturer/bulk supplier who had settled the federal case for $________. The jury then awarded $________ ________, including $________ for past pain and suffering, $________ for past medical bills, $________ for past lost earnings, $________ for future pain and suffering, $________ for future medical expenses, and $________ for future lost earnings.

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