After three and a half weeks of trial in Philadelphia Court of Common Pleas Judge Howland W. Abramson’s courtroom, a jury returned an $8.3 million verdict in a products liability case earlier this week.
Partner Robert J. Mongeluzzi and associate Larry Bendesky of Daniels Saltz Mongeluzzi represented the plaintiff, Harold Hart, who was left permanently deaf as the result of an accident involving a specialized machine used to install utility poles.
In April 1991, the machine, a digger derrick manufactured by South Dakota-based Simon Telelect Inc., was being operated by the 47-year-old Hart in Fort Wayne, Ind. Jurisdiction in Philadelphia was based on the fact that the digger Derrick had been assembled and purchased in Pennsylvania.
While installing new power lines, a utility pole was being lifted by a cable attached to a hook hanging down from the crane’s boom. The pole then started to roll in its sling.
As a result, the noose of the sling-like cable supporting the pole as it was being lifted vertically slipped off the open-ended hook, causing the pole to capsize directly onto Hart.
His injuries included a fractured skull resulting in a frontal lobe contusion – leaving Hart comatose for six weeks – and permanent loss of hearing.
Mongeluzzi said the fact his client was left permanently deaf was an element of the accident that really hit home with the jury. During trial, a real-time court reporter would transcribe questions which Hart would then read before giving a response.
Experts for the plaintiffs included a neuropsychologist, who explained the practical effects of mental impairment. Bendesky said this type of expert is being used with increasing frequency in closed-head injury cases.
“The neuropsychologist is able to take the data provided by the physicians and provide an opinion on what areas of the brain have been affected in order to assess how the individual has been impacted by the accident,” Bendesky said.
While declining to disclose Hart’s employer because of a confidentiality agreement, Mongeluzzi said the crux of his argument was that Simon Telelect’s product was defectively designed and did not have adequate warnings.
The attorneys said the key to the design defect argument was establishing that Hart, by being forced to operate the digger derrick from a position directly underneath the boom, was unavoidably put in a constant “zone of danger.”
Mongeluzzi said that a perch on top of the machine that would sit on a rotating turret with the machine’s boom would have taken the operator out of the zone of danger and allowed for maximum visual acuity.
“We argued that the company’s own literature described this feature as an option. A machine” is designed for a foreseeable and likely use – safety is not an option,” said Mongeluzzi.
Another theory advanced by the plaintiff was that the lifting attachment or hook, over which the lifting line was connected, should have been completely closed instead of the open-ended hook design that was in place. If the attachment had been closed, for example, by using a bracket, it would have prevented the situation where the force of a 2,800 pound-utility pole could slide off of the end-of-the-line lifting attachment.
According to plaintiffs counsel, Simon Telelect argued in its defense that the employer, as a sophisticated purchaser, could have installed its own lifting attachment.
“In response to the sophisticated purchaser argument, we argued that it is the end-user who ultimately needs to be warned. Often the person assembling the machine plays no role in selecting the component parts,” Mongeluzzi said. “The purchaser will simply use what the manufacturer recommends – so we argued that the manufacturer is really the expert.”
The five women, three men jury awarded $6 million to Hart in compensatory damages and $2.3 million to Hart’s wife, Billie Hart, for loss of consortium. The compensatory damages are subject to delay damages at a 27 percent rate – bringing the total award to approximately $10 million, Mongeluzzi said.
“The magnitude of the verdict was a very accurate reflection of the injury,” said Mongeluzzi. “Harold Hart is isolated in a world of silence and when asked [on direct examination] what that really meant, Hart said he felt ‘left out'”
Counsel for Simon Telelect, Francis P. Devine III of White & Williams, said that he felt the verdict was excessive and plans to appeal.