Friday, February 8, 2013

Defective Die Cutter Lawsuit Leads to Settlement

I am handling a number of Pennsylvania product liability lawsuits right now.  Defective food, defective bottles, defective contact lenses, it comes in all forms.  Understanding which defective product lawsuits are being well received by Pennsylvania juries is critical to determining how to proceed with product liability in our states.  We take a look at a great product liability settlement by Richard M. Jurewicz of Galfand Berger LLP out in Philadelphia, PA in the matter of McGurin v. Ward.

This product liability action was brought against the manufacturer of a commercial die cutter machine after the plaintiff was injured while cleaning out a build-up of scrap material from the scrap conveyor of the machine. The plaintiff alleged that the machine was defectively designed in that it lacked an end cap guard for the scrap conveyor idler roller, which would have prevented the plaintiff's injuries. The defendant maintained that the plaintiff's injuries resulted from his own negligence and the negligence of his employer in failing to properly maintain the machine.

The plaintiff was a 55-year-old machine operator with Packaging Company of America in Lancaster, Pennsylvania. He operated the Ward Rotary Die Cutter; a machine manufactured and serviced by the defendant to processes flat corrugated sheets at the plant. During the operation of the machine, the corrugated cut-outs are deposited onto a scrap conveyor that sits on the floor under the rotary die cutter machine. The corrugated cut-out scraps are transported by the scrap conveyor to a compactor/bailer system.

At the end of his shift on the day in question, the plaintiff noticed that there was a build-up of scrap corrugated cut-outs on the scrap conveyor. He reached down with his left hand to brush away the scrap, but he contended that his hand was pulled into the in-running nip point between the moving belt and its roller.
Evidence showed that the defendant had serviced the machine approximately two months before the plaintiff's injury. The plaintiff argued that the defendant failed to warn or advise the plaintiff's employer that there was an end cap guard for scrap conveyors manufactured by the defendant which was on some of its other Ward rotary die cutter machines. The plaintiff also alleged that the defendant performed a machine audit of the rotary die cutter in 1990 and, despite awareness that there was a dangerous in-running nip point on the scrap conveyor; it failed to recommend or provide plaintiff's employer with an end cap guard for the scrap conveyor.

The plaintiff suffered fractures to the ulna and radius of his non-dominant left arm as a result of the accident. He underwent two surgeries, including open reduction and internal fixation for both bones of the forearm and surgery to repair a lacerated tendon. Testimony showed that the plaintiff has been released to return to work on light duty with no left-arm lifting in excess of 20 pounds. The plaintiff sought $ 88,816 in past medical expenses; $ 103,375 in past loss of wages and $ 362,073 in future loss of earnings.

The defendant argued that, as designed, the rotary die cutter's scrap conveyor belt did not have any in-running nip points. The nip point was permitted to exist because the conveyor belt was badly worn and frayed, creating an opening for access to an in-running nip point between the roller and belt, according to defense arguments. Further, the defendant contended that the plaintiff's employer had guarded the conveyor by fabricating its own guard and, if it was properly connected and in position at the time of plaintiff's accident, it would have prevented his injuries.

Additionally, the defendant maintained that the plaintiff's employer had a lock out/tag out policy, which the plaintiff violated by not locking out the machine before cleaning it. Lastly, the defendant contended that the plaintiff assumed the risk of his injury by placing his hand into a dangerous area of the conveyor (in-running nip point) and exposing himself to a known potential injury.
The case was settled prior to trial for a total of $ 450,000.

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