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And The Defense Wins!
While
cleaning a KVM 34X concrete boom pump manufactured by
defendant Schwing America, Inc., the plaintiff
"improvised" a method of cleaning wherein he inserted
his right hand and arm up to the shoulder into the
outlet tube and rock valve of the pump. This enabled
plaintiff to come in contact with moving parts inside
the pump. As a result, most of his right hand was
severed.
Plaintiff filed suit against Schwing
alleging 1) negligence, predicated upon Schwing's
failure to warn plaintiff of the inherently dangerous
nature of pump, and 2) product liability, alleging that
Schwing failed to design the pump to operate safely,
which failure rendered the pump defective. Schwing
denied liability and asserted numerous affirmative
defenses, including comparative negligence on
plaintiff's part as being the sole proximate cause or
contributing proximately to the accident and that
plaintiff was negligent by misusing, abusing, or
improperly utilizing the pump in a manner contrary to
its intended use and contrary to its express written
instructions and warnings, both in its safety and
operating manuals, and on the pump itself by way of
warning decals.
Plaintiff suffered a
transmetacarpal amputation of most of his right hand,
excepting the thumb. Plaintiff’s experts opined that his
chronic pain, depression, and the medications needed to
manage those conditions combined to prevent plaintiff
from functioning normally, that he would likely not
improve but worsen, and that he would likely be
unsuccessful in any attempt to retain substantial
employment.
The defense was able to get
plaintiff’s own liability expert to concede during cross
examination that the pump was not defective, that the
warnings on the pump and in the accompanying manuals
were adequate to warn against what plaintiff did, and
that plaintiff was himself negligent.
After
plaintiff demanded $4.9 million in damages ($2.1 million
in economic damages and $2.8 million for pain and
suffering), the jury deliberated for just over a half
hour before returning a verdict for the defense. Final
judgment was entered on May 27, 2003. Good work,
defense!
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