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Two employees were compensated $2.7 million for injuries suffered when a portable crane freewheeled while being ‘hi-railed’ on subway tracks. The defendant was the distributor of a European-manufactured crane. The defendant modified the crane to accommodate the narrow tracks of the Boston subway system. The crane was designed to lift itself from rubber tires onto steel wheels that would operate on the MBTA rails, a process known as a hi-rail mode.

On the date of the accident, as the crane was placed into a hi-rail mode, the brakes did not have sufficient friction due to the modification. The lack of friction allowed the machine to freewheel down the track in the path of two workers.

The first employee was hit and pushed out of the way. He suffered a fracture to his spine and multiple abrasions and lacerations. After approximately six months, he had recovered sufficiently to return to light-duty work.

The second employee was struck by the crane and dragged several hundred feet causing serious and significant injuries, including a below-the-knee amputation.

The machine was manufactured in Europe and shipped to the United States for distribution by an American company. National experts were retained, and several out-of-state depositions were taken. In addition, a video was made reconstructing the hi-railing process. In this video, the machine was depicted as being freewheeled while being hi-railed on a sloped surface, demonstrating a defective design.

The plaintiffs were confronted with the Sophisticated Users Doctrine, claiming the employer knew or reasonably should have known of the crane’s danger. If successful, this would have relieved the manufacturer of liability for failure to warn. Counsel argued that the danger presented by the crane was not obvious to the end users and that a warning would have reduced the likelihood of injuries. Therefore, the defendant owed a duty to warn.

With significant coordinated effort from the liability and workers’ compensation attorneys, the cases were settled. The first employee received approximately $250,000 in workers’ compensation benefits, an MBTA pension and a $300,000 third-party settlement.

The second employee received a $1.7 million settlement and approximately $450,000 in workers’ compensation benefits, SSDI benefits and a full MBTA pension.

The case was referred to Keches & Mallen by outside counsel, who remained involved and communicative throughout the litigation.

Type of action: Products liability, workers’ compensation

Injuries alleged: Fracture to spine, multiple abrasions, and lacerations (plaintiff 1); loss of leg, lacerations, abrasions, loss of arm function (plaintiff 2)

Tried before judge or jury: N/A (mediated)

Amount of settlement: $300,000 (plaintiff 1); $1.69 million (plaintiff 2); combined settlements and workers’ compensation benefits totaled $2.7 million

Attorneys: Brian C. Dever, Keches & Mallen, Taunton (for plaintiffs’ negligence & tort claim), and Joseph F. Agnelli, Keches & Mallen, Taunton (for plaintiffs’ workers’ compensation claim)

The plaintiff was a 58-year-old male employed as an ironworker at a construction site. On the morning in question, his employer hoisted steel beams using a crane. Initially, the beams were hoisted one at a time. Later, however, the employer began ‘treeing’ the iron beams or lifting multiple iron beams simultaneously. In the ‘treeing’ process, each steel beam is connected to the crane’s hook using a different length of cable ‘ short, medium and long. The first beam is selected from the layout area and connected to the crane hook with the shortest cable and hoisted into the air. The operator centers the first beam over the second then centers both over the third beam. Once the third beam is connected to the crane hook, all three beams are hoisted to their appropriate location.

The first beam was connected to the crane hook and hoisted into the air. It was then centered over the second beam to be connected. While the plaintiff was connecting the second beam onto the crane’s hook, movement of the first beam caused tension on the second line, resulting in the medium length line going taut. That pulled the second beam, causing it to roll over onto the plaintiff’s left leg.

The plaintiff was left with a moderate limp and loss of function. The injury required a rod to be inserted in the left tibial intramedullary. His medical providers indicated that his injury permanently disabled him from performing his duties as an ironworker.

Plaintiff’s counsel filed a claim against the prime contractor, alleging that the tag lines, which are used to stabilize the beams, were of an inadequate length. He also alleged that the general contractor/prime contractor failed to perform jobsite inspections and job hazard analysis, and had the defendant adequately supervised and/or inspected the jobsite it would have recognized that ‘treeing’ the iron without sufficient tag lines was not safe.

The defendant’s position was that the means and methods of erecting the iron was solely the responsibility of the plaintiff’s employer and that each ironworker had the ability to stop working if he felt the job was dangerous.

The defendant was prepared to present evidence that it was and is an acceptable practice to lift multiple pieces of iron at the same time.

The workers’ compensation settled for $155,000, while the third-party case settled for $265,000, with a substantial reduction in the workers’ comp lien.

Type of action: Negligence & tort

Injuries alleged: Left leg crush injury

Name of case: Withheld

Name of mediator: Brian Mone

Amount of settlement: $420,000

Attorney: Brian C. Dever, Keches Law Group, Taunton (for the plaintiff

A 6-year-old riding his bicycle was killed when he was struck by a truck. The defendant was a company doing road work in a residential area. The child and his friend had stopped at an intersection. They intended to proceed across the northbound side.

While they were stopped, a dump truck pulled up to the eastbound side of the intersection and stopped. As the child proceeded to cross, the truck moved out into the intersection and took a wide right turn, striking the bicycle. The boy was dragged for a short distance before the truck came to a stop.

A reconstruction showed that the truck operator should have been able to see the two children at all times during the turn.

A forensic pathologist confirmed that the boy was conscious for a few moments as the truck passed over him before being killed by the driver’s side rear tire.

The operator of the truck was alleged to have consumed two beers between 12 and 1 p.m. during his lunch break, in violation of Department of Transportation rules and the corporate rules of the defendant. The accident occurred at approximately 3:15 p.m.

Plaintiffs’ counsel retained a toxicology expert who opined that while the operator would not have been showing visible signs of intoxication, he still would have been affected by the consumption of alcohol. The effect would have included confusion in situations requiring multi-task decision-making.

In this particular application, the truck driver simultaneously would have been trying to make a right-hand turn, view approaching traffic and keep a watch on the boys.

Separate counsel was retained by the parents as they were unmarried. An agreement was reached before litigation in terms of fee splitting and expense sharing.

An unsuccessful attempt was made to resolve the case through formal mediation, as the primary liability policyholder was unwilling to tender an amount that approached policy limits. The case was then litigated with defense counsel tendered by the primary carrier. The primary carrier’s policy limits ultimately were offered through the excess carrier.

Type of action: Motor vehicle negligence

Injuries alleged: Death

Amount of settlement: $1.7 million

Date: May 2009

Attorneys: Brian C. Dever, Keches Law Group, Taunton; Brian Dias, Dassault & Zatir, Taunton (for the plaintiffs)

One million pool, drain covers recalled ahead of Memorial Day weekend. The AP /New York Times (5/26, Subscription Publication) reported, ‘Eight manufacturers have voluntarily recalled about one million pool and in-ground spa drain covers because of incorrect water flow ratings.’ In a Thursday announcement, the Consumer Product Safety Commission said ‘the recalled covers could pose a possible entrapment hazard to swimmers and bathers.’ Manufacturers include ‘Arizona-based A&A Manufacturing and Color Match Pool Fittings, California-based AquaStar Pool Products Inc. and Waterway Plastic, Georgia-based Custom Molded Products, New Jersey-based Hayward Pool Products, North Carolina-based Pentair Water Pool and Spa and Tennessee-based Rising Dragon USA.’

”” USA Today (5/26, Korte) reported, ‘The recall is the result of months of investigation in which the CPSC subpoenaed 17,000 pages of documents from testing laboratories, which the agency says used bad standards in testing the drain covers.’ CPSC Chairwoman Inez Tenenbaum ‘urged public pools with recalled covers to close immediately until they can be replaced’ and instructed private pool owners to contact manufacturers right away. Tenenbaum said, ‘I know this is a very difficult message for many communities to hear so close to Memorial Day weekend, but we cannot risk a child becoming entrapped in a recalled drain cover.’

”” The Chicago Tribune (5/26, Callahan) reported the recall announcement ‘set off waves of frustration among pool owners and operators who installed this safety equipment in recent years to address a deadly entrapment hazard that federal regulators now say these covers can fail to prevent.’ The Tribune added, ‘Although many of the drains cover themselves are not very expensive, hiring a pool professional to replace or retrofit them can cost hundreds of dollars.’ The recall does not apply to ‘larger pools with multiple drains or gravity drainage systems. ‘But those with a single main drain will need to close if their drain cover is slated for replacement under the recall.’

A 9-year-old boy was killed at a large industrial site when he fell through a grate hidden beneath a sand hill on which he and a friend were playing. The site, which was located next to a residential neighborhood, stored materials for concrete mixing and contained large sand piles in open areas. The mounds appeared to be resting on level ground; however, they actually lay on top of metal grates covering a chute that allowed sand to drop to a lower level into a funnel, which controlled the sand flow in the mixing process.

The defendant had neither a monitoring system for the sand piles nor an alarm system to warn people in the area of impending mixing.

On the day of the accident, the two children entered the site and were playing on the sand piles. Their presence was unknown to the control-room operator. When the mixing began, the grate below a sand pile opened and one of the children was pulled under and into the funnel. Before emergency personnel could respond and cut the funnel open, the child had suffocated and died.
An investigation of the site revealed that prior fatal accidents had occurred under similar circumstances over a period of decades. Following this accident, subsequent remedial measures were taken by the defendant, including the placement of monitoring cameras that allowed viewing by the control room. Warning signs were placed in the sand pit area and alarms were designed to sound just prior to the grates being opened.

A forensic pathologist opined that, based on the facts and circumstances of the accident and the autopsy results, there was a five- to-20-minute window in which the child would have been conscious during the suffocation process.

The parents of the deceased child were divorced. The minor lived with one of the parents. Each parent was represented by separate counsel, who consulted with the estate’s probate attorneys.

Based on the presumptions of the Probate Court and given the facts of the particular parental relationship, an agreement was reached for an equitable split of the proceeds. As part of the settlement, trusts were established for the siblings of the deceased minor.

Type of action: Negligence & tort

Injuries alleged: Death by suffocation

Name of case: Withheld

Court/case no.: Withheld

Tried before judge or jury: N/A (settled)

Amount of settlement: $2.5 million

Date: January 2009

Attorney: Brian C. Dever, Keches Law Group, Taunton (for the plaintiff)

$600,000 settlement

The plaintiff was working as a maintenance worker on the Massachusetts Turnpike doing snow removal work in the westbound direction when his vehicle was struck by the defendant’s tractor-trailer.

The plaintiff’s truck was parked near the left median of the highway, and it was equipped with flashing emergency lights and had a flashing arrow board indicating to stay right.

The force of the impact pushed the plaintiff’s vehicle 234 feet west, with the plaintiff’s vehicle coming to rest facing north across the travel lane. The defendant’s truck disengaged from the plaintiff’s vehicle and continued west, coming to rest across the right travel lane, breakdown lane and exit ramp. The rear trailer unit of the defendant’s truck came to rest 45 feet west of the plaintiff’s truck.

The defendant’s truck was traveling 65 mph when it struck the plaintiff’s vehicle.

The police report quoted the defendant tractor-trailer operator as stating that he ‘had been fighting strong crosswinds and had been blown into the left lane just prior to the accident.’ The statement corresponded with the fact that the National Weather Service had issued a high wind warning that day.

The plaintiff was prepared to argue that the fact that the defendant driver was driving an empty load made his vehicle more susceptible to being blown out of its lane and that the driver should have taken precautions.

In his deposition testimony, the defendant had no memory of the accident and or of fighting strong winds prior to the accident.

The defendant operator had a history of speeding convictions prior to the accident, and his employer was aware of the convictions. The defendant operator had his driver’s license suspended in August 2001. During that time, it would have been within the sole discretion of the defendant employer to get rid of any driver who, in their opinion, had a pattern of speeding.

As a result of the accident, the plaintiff sustained facial lacerations, residual post-concussive syndrome, neck and back injuries which led to a restriction in range of motion, a nasal fracture and deviated nose, a corneal abrasion, the extraction of multiple teeth, post-traumatic stress disorder and minimal facial scarring.

The defendants were prepared to argue that the defendant operator was traveling at the posted speed limit and that the operator had no independent memory of the accident. The defendants would have argued that a strong gust of wind pushed the defendant’s vehicle into the plaintiff’s vehicle and that it was beyond the control of the defendant operator.

The defendants also claimed that the plaintiff had recovered from his facial injuries, that his teeth had been cosmetically repaired, that any back or neck injuries had resolved and that the plaintiff was capable of returning to work soon after his accident.

The defendants were further prepared to use medical reports prepared on behalf of the plaintiff’s workers’ compensation carrier to substantiate that the plaintiff was not suffering from depression and post-traumatic stress disorder and that if either existed, it was not causally related to the accident.

After mediation, the parties settled the case for $600,000, inclusive of the spouse’s loss of consortium claim. The plaintiff settled his workers’ compensation claim and filed a claim for accidental retirement disability with his employer.

Type of action: Motor vehicle negligence

Injuries alleged: Facial lacerations, post-concussive syndrome, neck and back injuries, restriction in range of motion, nasal fracture and deviated nose, corneal abrasion, dental injuries, extraction of multiple teeth, post-traumatic stress disorder, facial scarring

Tried before judge or jury: N/A (settled after mediation)

Name of mediator: David O. Burbank

Amount of settlement: $600,000

Attorneys: Brian C. Dever and Ernest J. Palazzalo, Keches & Mallen, Taunton (for the plaintiff)

$1.2 Million Verdict

On Jan. 3, 2002, the 34-year-old plaintiff UPS truck driver arrived at the defendant rail yard and was told the train car number and the direction he was to face his trailer. The plaintiff then drove to the area where the train was located and did a U-turn so the trailer was facing in the proper direction.

The plaintiff stopped the truck with the driver’s side next to the train track, leaving an opening of approximately five feet. The plaintiff then opened his driver’s side door, climbed down to the ground and proceeded to lower the landing gear handle, which was located on the driver’s side of the trailer in the opening.

The plaintiff made three or four turns of the handle when he was struck in the back and pushed into the side of the trailer by the lifting arm. His right dominant arm was grabbed by the hydraulic arm of the crane that was used at the rail yard to load trailers.

The crane approached from the passenger side without determining the location of the driver. The crane driver grabbed hold of the backside of the trailer, pinning the plaintiff’s hand and wrist between the lifting device and the bottom of the plaintiff’s fully loaded box trailer.

The plaintiff remained pinned for several minutes before a clerk saw him and alerted the crane driver to release the load, freeing the plaintiff.

As a result of the incident, the plaintiff suffered a severe crush injury to his right dominant wrist, which required surgery, physical therapy, and rehabilitation. The plaintiff suffered permanent median nerve damage to his hand, leading to an inability and restriction of the tasks he could perform with that hand. These limitations disabled the plaintiff from returning to his previous occupation as a tractor-trailer driver, as well as restricted the occupations he could successfully perform.

Throughout the course of discovery, it became evident that the crane operator failed to follow the proper lifting procedures. It also became apparent that the defendant rail service company failed to comply with the federal court’s automatic disclosure rules and failed to identify one of the defendant company’s employees as a witness.

The plaintiff then put the defendants on notice of 93A/176D claims. Two weeks prior to trial, the defendants stipulated liability. Therefore, the only issue at trial was the damages portion of the case.

Due to the limitations of what could be done to improve his right hand, the plaintiff had only incurred approximately $18,000 in medical bills. The plaintiff’s treating physician testified that the plaintiff was at a medical end result one year after the accident. The plaintiff did, however, have a work capacity of approximately $23,000 a year plus benefits.

Both the plaintiff’s and the defendants’ vocational expert opined that the plaintiff had a work capacity based on his physical limitations, his education and his work history. The testimony focused on the job categories of sales representative and dispatcher, and the defendants’ vocational expert opined that the plaintiff had an earning capacity in the pay range for those positions.

The plaintiff’s expert opined that the plaintiff suffered a total present value loss of net earning capacity of $773,846. The plaintiff’s economic expert also opined that the plaintiff suffered a loss of fringe benefits in the amount of $653,315. As an employee of UPS and a member of the Teamsters Local 25, the plaintiff was receiving a substantial benefits package at the time of his injury. According to the plaintiff’s expert, as a result of the injury, the plaintiff sustained a present value net economic loss of $1,427,161.

After approximately one hour of deliberations, the jury had two questions for the judge. First, the jury asked whether the verdict was limited to the $1.4 million figure. The judge informed the jury that it was not. The second question was should the $18,000 in medical bills be considered in the verdict, or were they paid by workers’ compensation, and did workers’ compensation have to be reimbursed. The jurors were instructed that if the medical bills were reasonable and necessary, they should consider them in their verdict. Regarding workers’ compensation, jury members were instructed that it was not for their consideration.

Before the verdict was read, the defendants increased their offer to $1.2 million. The plaintiff rejected that offer, and the jury returned with a verdict of $1.2 million. The final award with interest totaled $1,539,682.

Type of action: Negligence & Tort

Injuries alleged: Crush injury to right dominant wrist

Name of case: Sheridan v. CSX Transportation Inc., CSX Intermodal Inc., and Pacific Rail Services Inc.

Court/case #: U.S. District Court, Worcester, No. 4:02-CV-40175-CBS

Tried before judge or jury: Jury

Name of judge: Charles B. Swartwood III

Amount of verdict: $1.2 million (plus interest of $339,682, for total of $1,539,682)

Date: Dec. 3, 2004

Demand: $1.75 million before trial (with a clear indication that $1.2 million would be accepted)

Highest offer: $100,000 (until one week before trial; after questions from the jury, an offer of $1.2 million was made)

Most helpful expert: Dr. Edmund Rowland, orthopedics, a hand specialist, Concord, N.H.

Attorney: Brian C. Dever, Keches & Mallen, Taunton (for the plaintiff)

$850,000 Settlement

The plaintiff’s employer was one of many subcontractors working to complete construction of a new retail store in Boston. The first defendant was another subcontractor, hired by the general contractor to install specialized sheet metal to the front of the new store. The second defendant was the general contractor for the project and was responsible for the overall safety of the worksite.

According to counsel for the plaintiff, during discovery it was found that the general contractor had pressured all subcontractors to finish the job in time for a Thanksgiving store opening and an upcoming party to be held at the store.

The plaintiff contended that as he was grouting pavers, the sheet metal workers moved their staging just behind where he was working. The plaintiff walked away from the area but allegedly was ordered back by the general contractor, as well as by his own supervisor. Although he knew it to be dangerous, the plaintiff followed orders and returned to grouting under the staging.

The plaintiff’s injury was caused when an employee of the first defendant inadvertently dropped a flat bar while standing on staging and reaching over his head to manipulate a piece of sheet metal. The flat bar ricocheted off of the pavers and struck the plaintiff above the right eye.

A construction expert would have testified that, in compliance with the Code of Massachusetts Regulations and OSHA standards, no workers should have been allowed to work in the area surrounding the staging and that barricades or monitors should have been set up.

The plaintiff contended that the first defendant was negligent in that one of its employees carelessly dropped the flat bar from the staging. Also, the plaintiff claimed the first defendant allowed its workers to work on the staging above the plaintiff, failed to take the necessary steps to prevent tools from falling off the staging, and failed to utilize barricades or monitors to keep that area clear.

The plaintiff asserted that as the general contractor, the second defendant had a duty to maintain the overall safety of its work site. The general contractor had specific knowledge of complaints and requests to keep the area clear but allegedly ignored these requests. The general contractor allegedly failed to take the necessary steps to prevent tools from falling off the staging to the ground below. Further, the general contractor was allegedly negligent indirectly ordering the plaintiff to work in that area.

In contrast, the defendants contended that the plaintiff was comparatively negligent in positioning himself below the staging. The plaintiff admitted at deposition that it was a ‘cardinal rule’ of safety that one does not work under staging. The plaintiff further admitted that he knew that the sheet metal workers were on the staging working above him and knew of the possibility of falling tools.

The testimony of the sheet metal workers on the staging was that they did not know that the plaintiff was working below them. Further, neither the general contractor not the plaintiff’s supervisor claimed to have had any memory of ordering the plaintiff to work in any particular area. Accordingly, the defendants contended that the plaintiff was more than 50 percent at fault for his injuries and therefore barred from any recovery pursuant to G.L.c.231, Sect. 85.

As a result of the impact, the plaintiff experienced lightheadedness and bleeding. He was rushed to a nearby hospital where he was treated and released. Subsequent MRI and CT scans were interpreted as ‘negative.’

Over the next several months, the plaintiff continued to experience severe headaches and dizziness from the impact and was diagnosed with Post Traumatic Headache Syndrome. The headaches and memory problems precluded the plaintiff from returning to any type of work. Approximately 17 months after his accident, the plaintiff has placed inpatient at a rehabilitation hospital for treatment of his headaches.

Due to this recurring pain, cognitive difficulties and sedentary lifestyle, the plaintiff was diagnosed with major depression. He was transferred to a psychiatric facility for 10 days. Following discharge, the plaintiff required continuing treatment for his depression, headaches and shoulder injury.

Three-and-a-half years after his accident, the plaintiff was placed in a residential home for adults with head injuries. He remained in this placement for approximately 15 months.

The plaintiff was prepared to present an expert neurologist with a specialty in head injuries to explain that a diagnosis of concussion does not require that the patient actually lose consciousness. Rather, an alteration in consciousness is consistent with the diagnosis of Post Traumatic Headaches. The neurologist was expected to explain that the negative MRI and CT scans were helpful in determining that the reported symptoms were not caused by a pre-existing formation in the brain, such as a tumor, and while MRI and CT scans can be useful, they are not yet to the level of sophistication which would detect all or even most brain trauma.

The defendants were prepared to present the results of an evaluation of the plaintiff by a panel of four physicians, which concluded that there was no neurologic basis for the plaintiff’s symptoms and that the diagnosis of major depression was unwarranted. The panel evaluators concluded that a diagnosis of a closed head injury was not supported as the plaintiff never actually lost consciousness at the time of injury. The defendants also argued that the ongoing headaches were out of proportion to the original injury as the MRI and CT scans were negative.

After negotiations and mediation, the claim settled for $850,000.

Type of action: Negligence & Tort

Injuries alleged: Headaches, depression, psychosocial distress, impaired cognitive function, limited range of motion

Name of mediator: Raymond S. Ewer

Amount of settlement: $850,000

Date: August 2004

Attorney: Brian C. Dever, Keches & Mallen, Taunton (for the plaintiff)