Case Results

Staking Machine Accident

This case involved the traumatic above-wrist amputation of a right dominant hand in a work-related machine accident. The central issue was the removal of a bolster guard, which would have prevented the plaintiffs hand from becoming entrapped between two in-running rollers on the operators side of the machine. Although the case was originally filed in State Court, it was removed to Federal Court by the Defendants.

The accident happened on a Mercier Freres "Lunetteuse DH-2 - 1700" staking machine that was originally manufactured in Annonay, France sometime in the early 70s. Staking machines are used in the tanning industry to stretch leather hides. As manufactured, the machine had what was called a bolster guard, which worked to prevent the operators hand from becoming entrapped between two in-running rollers located on the operators side of the machine. Discovery traced the ownership of the staking machine as far back as AC Lawrence Leather Co., a company that was long out of business. Twin City Leather Company in Gloversville, New York had purchased this staking machine from AC Lawrence. Twin City, in turn, sold the staking machine to Southern Wool & Skin, Inc., of San Antonio, Texas. It was Southern Wool that sold it to the plaintiffs employer, W.B. Place, of Hartford, Wisconsin in October of 1997.

The $64,000 question in this case was who removed the bolster guard on the staking machine before it arrived and was installed at W.B. Place. The flip side argument of defendants was that these unguarded rollers were open and obvious, and that W.B. Place was negligent in failing to notice and/or appreciate this danger. Mr. Langdon Marvin of Twin City Leather originally sold the staking machine to Southern Wool in 1994 and testified that a bolster guard was on the machine when it was sold to them. According to the president of Southern Wool, Patrick Wheeler, the machine and the entire plant were OSHA inspected in 1995, and no safety violations were found. Discovery revealed Southern Wool documents showing that after the 1995 OSHA inspection, the staking machine was modified when side motors and mounting plates were replaced. Whereas the original mounting plates from the factory accommodated the bolster guard, the refabricated mounting plates put on by Southern Wool did not. The jury would have been left with the inevitable conclusion that the bolster guard was removed when the motors and mounting plates were replaced by Southern Wool.

The plaintiff, Hector Nunez, was born in April of 1981 in the town of Sinaloa, Mexico. He came to the United States in l995 to study in Denver, Colorado but eventually moved to Hartford to be with his brothers. At the time of the accident, Hector was sixteen (16) years of age and spoke very limited English. In order to obtain employment with W.B. Place, he used his brothers resident alien identification card and social security card. In May of 1997 Hector began working at W. B. Place, and once the staking machine was up and running, he was its main operator.

On January 30, 1998 Hectors right dominant hand became caught between the 2 in-running rollers of the staking machine, trapping him for approximately 20-25 minutes. In order to free his hand and arm, the Hartford Fire Department needed to use the Jaws of Life to separate the 2 rollers. Once freed, the paramedics took him to Hartford Memorial Hospital. Due to the severity of the crushing injuries to his right hand, he was then flown by Flight for Life to Froedtert Hospital. Once at Froedtert, Dr. Hani Matloub, a well-respected hand surgeon, treated Hector. Dr. Matloubs operative report stated "there was no possibility for salvage and hence, we proceeded with above-wrist amputation." Hector remained under Dr. Matloubs care until he was released with restrictions on November 5, 1998. During this time he was fitted with both a myoelectric arm and a hook prosthesis.

Dr. Mark Rusch, a psychologist within Dr. Matloubs department, was also treating Hector for the period February 5, 1998 until December 15, 1998. Dr. Rusch testified that Hector had replay flashbacks, wherein he replayed the sight of his mutilated and disfigured right hand, which progressed to projected flashbacks, in which he would see his left hand also being injured He also testified that Hectors depression was not caused by secondary gain.

Dr. Rusch also worked on desensitization techniques in an attempt to get Hector back to work. This culminated in 2 site visits at W.B. Place where they stayed in the parking lot. When the desensitization failed to work, Dr. Rusch released Hector to work on December 16, 1998 with the following permanent restrictions: "may not operate, maintain, clean or perform any other functions with production machines."

The workers comp. carrier hired Laris Rehabilitation to work with and help Hector find employment. Defendants vocational expert, Ms. Jacqueline Wenkman, relied heavily on their unflattering reports of Hector. The job leads they gave him proved incompatible with Hectors work restrictions. While Laris was unduly concerned about Hectors refusal to wear either prosthesis, plaintiffs vocational expert, Dr. Ross Lynch, testified that wearing any prosthesis would not have enhanced Hectors employability in the marketplace.

Defendant obtained both a statement and a later affidavit from a former employee of Mr. Marvins, Earnest Blanchard. The statement claimed that there was no guard where the skins entered the machine. However, plaintiff and defense experts agreed no guard was ever intended for that area. A subsequent affidavit of the former employee Blanchard was drafted by defense counsel thereafter and was much broader than the initial statement. Plaintiff was prepared to call as a trial witness Mr. Blanchards former supervisor, who let Mr. Blanchard go. The supervisor was also prepared to testify that no such guard was ever on the machine when Mr. Blanchard operated it at Twin City. Blanchards credibility would have been called into question, with the manager testifying that he was nothing more than a disgruntled ex-employee.

One of defense counsels main defenses was that the sale of the staking machine was an "as is" sale. Since there was no mention of "as is" in the sale documents, counsel contended that it was the custom and practice that all sales of used machinery in the tanning industry were made "as is". Defense counsel attempted to elicit custom and practice testimony/evidence from both Southern Wool president Wheeler and Mercier sales representative Roger Droukas. It should be noted that Mr. Droukas lost any commission from W.B. Place when they purchased a used machine. Plaintiff brought successful motions in limine against such testimony by both witnesses, since they were not disclosed as expert witnesses. The trial court ruled that since both witnesses were not disclosed as expert witnesses by the defense, they could not provide opinion testimony about tanning industry custom and practice.

Further, Southern Wool moved for summary judgment, generally seeking dismissal of the entire case, and also specifically on the 402A strict liability claim. Defense counsel alleged that Southern Wool was an "occasional seller", and thus, exempt from 402A liability. The trial court granted summary judgment only on the strict liability claim. Therefore, plaintiff was prepared to argue that as an "occasional seller," it was unlikely that Southern Wool would know about "as is" sales and Southern Wool would be prohibited from introducing any Uniform Commercial Code arguments in an attempt to establish an "as is" sale because the UCC does not apply to an occasional seller.

Since Mr. Nunez was 16 years of age at the time of the accident and he obtained his employment at W.B. Place with the use of his older brothers identification, Southern Wool wanted the court to find W.B. Place absolutely liable for the injury given its violation of the Wisconsin Child Labor Laws. The Court rejected Southern Wools motion for a finding that W.B. Place should be held absolutely liable for violating the Wisconsin Child Labor Laws, and prohibited any opinion testimony from the workers compensation investigator on whether plaintiffs use of the staking machine was a violation of the Child Labor Laws because defense counsel again failed to disclose the investigator as an expert on this issue. It was the plaintiffs position that Mr. Nunez was an emancipated minor, and therefore the Child Labor Laws would not have been applicable.

Larry Burck, Ph.D., P.E., of the Milwaukee firm of Weiss & Burck, Ltd., was the consulting engineer retained by the plaintiff and the workers compensation carrier to examine the Mercier leather staking machine. It was Dr. Burcks opinion that had the original guard been properly placed on the machine, or a suitable replacement guard fabricated when the mounting plates were replaced, the accident would not have happened. The removal of the original guard without replacing it rendered the machine unreasonably dangerous and in violation of ANSI/ASME standards.

Mr. Peter Barroso, a registered professional engineer in the State of Illinois, was the defense engineering expert. He was employed at Triodyne, Inc. for 21 years, which is a large engineering expert witness supplier for defense firms. In addition to faulting Hector for the accident, he concluded that the machine design was also a contributing factor. However, such a conclusion was directly contradicted by the defendants very own affirmative defenses, which alleged that the machine "conformed to the custom and usage and state-of-the-art at the time of manufacture and sale."

Defendants vocational expert in this case was Jacquelyn Wenkman. Both Ms. Wenkmans expert report, and her deposition testimony, relied on the job prospects offered Hector by Laris. All of these "alleged" jobs were challenged at her deposition, yet she still relied on the corresponding wage data from these jobs. Thus, plaintiff brought a Daubert motion seeking to limit/prohibit certain vocational testimony. Judge Clevert ruled that Southern Wool was prohibited from using this vocational experts testimony on plaintiffs post injury earning capacity and future loss of earnings.

Defendant Reliance Insurance and one of its subsidiaries held both the primary insurance and the excess coverage in this case. Ongoing throughout this case and settlement negotiations was the slow deterioration of Reliances financial condition. On the day of the final pre-trial Reliance sent a representative to handle the settlement negotiations, with the final authority to settle the case. Prior to the trial courts ruling on Plaintiffs remaining motions in limine and pending Rule 11 Motion, Magistrate William Callahan, Jr. was able to successfully mediate a settlement. A mere 2 days later Reliance Insurance was taken over by the State of Pennsylvania, and immediate stay orders were issued in all cases involving Reliance Insurance as a defendant.

The workers compensation lien in excess of $110,000 was successfully compromised. The fact that Hectors employer, W.B. Place had never used such a machine in the past did not excuse it from failing to identify and/or notice the open and obvious unguarded rollers. Unfortunately the workers comp. case workers, it seemed, went out of their way to discredit the plaintiff. Their unflattering reports, along with a psychiatric medical record review alleging secondary gain, provided additional ammunition to the defense. Further, significant employer negligence/liability existed regarding the failure to guard the rollers.

Case Information
Hector a/k/a Jose Nunez v. Southern Wool & Skin, Inc. et al.
Case No. 99-C-165
Before the Hon. Charles N. Clevert
Settlement: $750,000
Counsel for the Plaintiff:
Willard P. Techmeier and David J. McCormick of The Techmeier McCormick Group SC
Michael Ganzer of Hodan, Doster & Ganzer, SC

Counsel for the Defendants:
James Kriva of Kasdorf, Lewis & Swietlik, S.C.
Counsel for Defendant workers comp. carrier:
Roland Cafaro of Halling & Cayo, SC.