Articles Posted in Defective Products

June 18, 2015: Ronald Morse, 40, a member of International Association of Ironworkers, Local 7 of Boston, has died, and Mark Praetsch, 30, a member of the International Union of Elevator Constructors, Local 4 of Boston, was seriously injured as the result of a construction accident. The accident happened on June 11, 2015 at a Suffolk Construction jobsite in Somerville, where a Partners Healthcare facility is being constructed. According to a Suffolk Construction spokesman, the men were injured when a hoist cab unexpectedly fell away from the building during assembly of the hoists, and fell then three stories to the ground.

Members of the Somerville Police Department arrived on the scene and provided first aid to Morse and Praetsch. The men were then transported to Massachusetts General Hospital, where Morse was later pronounced dead. Praetsch was initially listed in critical condition, but has since stabilized.

The Occupational Safety and Health Administration (“OSHA”) has opened an investigation to determine if Suffolk violated any workplace safety standards. No charges have been filed to date, and Ted Williams, U.S. Dept. of Labor Regional Director of Public Affairs, estimates that the inspection will not conclude for several weeks.

March 8, 2013 – Robert Leon, 47, of Andover, Massachusetts, has died as the result of serious personal injuries sustained in a two-car accident on Sunday night. According to police, Leon was operating his vehicle on Route 125 in Wilmington, when he lost control of the car, entered the oncoming lane, and collided head-on with another automobile.

Leon was pronounced dead at the scene by emergency response personnel at approximately 8:30 p.m. The occupants of the other vehicle, an unidentified adult and child, were also injured in the accident. They were transported to Lawrence General Hospital for treatment.

The accident is currently under investigation by the Wilmington Police Department, the Andover Police Department, the Massachusetts State Police, and the Massachusetts Department of Transportation.

Source: MassLive.com, AccidentIn.com

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December 23, 2009 – Gerard Boucher, 48 from Newburyport, Massachusetts, and Geraldo Hernandez, 37 of Haverhill, were seriously injured when the scaffolding, which they were using to renovate a home in Newburyport, collapsed beneath them Tuesday afternoon. The two men were working at the home located at 25-27 Kent Street when the accident occurred.

scaffold.gifAccording to police, the men were hanging fascia board trim along the roof on the side of the house adjacent to the home at 29 Kent Street. It appears that a faulty bracing support caused the scaffolding to tumble. A third worker, who was installing ice shields on the roof at the time of the accident, heard the crash but did not see the men fall.

When rescue workers arrived on the scene, both victims were unconscious and Boucher had visible massive head trauma. The men were treated at the scene and then brought to Anna Jacques Hospital in Newburyport. Boucher was subsequently transferred by medical helicopter to Massachusetts General Hospital, where he is listed in critical condition. Hernandez was also airlifted to Beth Israel Hospital, where he is listed in good condition.

This accident remains under investigation by the Newburyport Police Department and the U.S. Occupational Safety and Health Administration.

Source: The Gloucester Times, The Gloucester Times

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November 14, 2009 – An eighteen year old Boston area college student reports that she purchased and used Oxy® Maximum Face Wash, a well known acne treatment product sold in pharmacies throughout the U.S., but eventually the skin on her face became significantly discolored in areas where she had applied the product.

 The young woman first bought the over-the-counter medication in the summer of 2009 at a CVS store. She used it daily as directed for several months, but eventually noticed that she was losing skin color in the areas of her face where she had applied the face wash. She immediately ceased use of the product, but the skin discoloration remained.

Now, several months later, and even though she has not used the product again, she still has significant discolored patches on her face. Recently, she was examined by a dermatologist who was not willing to confirm whether or not the condition was permanent. In his words, “only time will tell”. Meanwhile, this young lady must now apply make-up to her face whenever she goes out, in an attempt to hide what she considers obvious disfigurement as the result of her use of the Oxy®  product.

 

                      CroppedOxyPictureAfter4.jpg                                  Oxy®  Face Wash, manufactured by the Mantholatum Company, Inc., is prominently advertised to contain ten percent (10%) benzoyl peroxide, a product widely used to fight acne, but which has also been reported to have side effects, causing itchy, dry skin and rashes. The product’s label and other literature give no warning that skin discoloration could occur as a result of use of the Oxy®  Acne Products.

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In this two part Blogpost, Boston Accident Lawyer, Keith L. Miller, reviews and analyzes a First Circuit U.S. Court of Appeals decision, which considers insurance coverage issues for an accident involving a man whose arm was severed in a wool picking machine, while engaged as a contract worker for a Western Massachusetts recycling company.

PART ONE :  PERSONAL INJURIES FROM CONTRACT WORKER’S SEVERED ARM MAY NOT BE COVERED BY INSURANCE

On August 23, 2004, Raul Torres suffered serious personal injuries when his arm was severed in a wool picking machine while working at Carrabassett Trading Company  “CTC”) in North Oxford, Massachusetts. CTC is a recycling company, which collects and recycles waste fiber from textile mills, bales up the material and sells them to other manufacturers. 

wool picking machine.jpgTorres was not an employee of CTC. Rather, his services were provided to CTC by his employer, Venturi Staffing Company, Inc (“Venturi”). Because CTC has an inconsistent demand for its products, it hires such contract workers to supplement its permanent staff of five. Torres filed suit against CTC in Massahusetts state court.

CTC’s insurer filed a federal court action seeking a declaration that there was no coverage for the injuries due to “employer” exceptions in the company’s liability policy. The Court reversed a district court ruling in favor of the insurer, and remanded the case for further proceedings.

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(This is the second post of a blog, from Boston Personal Injury Lawyer, Keith L. Miller, which considers protections afforded under a Massachusetts statute intended to protect non-profit entities from liability from accidental personal injury)

PART TWO – GL C. 231, S. 85V CONSIDERED 

General Laws c. 231, § 85V limits the liability of non profit sports programs to third parties for accidents and injuries arising from the conduct of such programs. However, the limit on liability is not absolute. Specifically, liability can arise for conduct relating to the care and maintenance of real estate which the association uses in connection with a sports program or related activity (G.L. c. 231, § 85V(iii)).

goal-post2.jpgThe Plaintiff articulated two reasons why the immunity provided by the statute should not apply to his facts. First, he contended that the statute did not apply because he was neither a participant, nor a spectator at an organized game or practice at the time of the accident. The Court rejected this theory on the basis that the immunity was not controlled by the status of the individual who was injured, but rather on the question of what was the status of the organization. If the injury arose from the conduct of the sports program, the immunity applied. Here, the placement of the goal posts on the field was irrefutably a part of the conduct of its soccer program.

The Plaintiff also contended that the real estate exception in the statute imposed liability on the association. He argued that the associations were negligent in their care and maintenance of Haskell Field by permitting improperly secured goal posts to be present on the property, and that this dangerous condition caused him serious harm. The Court rejected this argument, and an analysis that followed the common law duty of landowners to invitees with regard to unnatural and dangerous conditions on the premises.

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The wife of an employee who suffered injuries while operating a forklift, which resulted in his death, is entitled to keep an award of $1.5 million awarded by a jury who found that the manufacturer of the forklift beached a duty it owed to the subsequent users of the machine, even though they were not its original purchasers.

The U.S. First Circuit Court of Appeals had certified a question to the Maine Supreme Court regarding a jury instruction given in the case, which was taken from the Restatement of Torts, section 10, involving products liability. The question was whether a manufacturer had a duty to warn known but indirect purchasers where a product was not defective at the time of sale, but a product hazard developed thereafter.

The Maine Supreme Court answered in the affirmative, not relying on the Restatement language, but based on the facts presented in the case, determining that liability could be established on a theory of simple negligence. This was so because the manufacturer specifically knew that this company owned one of its forklifts and therefore the risk of injury to this particular defendant was foreseeable.

The Defendant argued that it was entitled to a new trial because the Restatement jury instruction was improper, based on this interpretation. The First Circuit disagreed. Specifically, the Court found that the duty of care issue had been properly presented to the jury, and before the Court made any kind of ruling on the jury instructions, and in fact it was the Defendant who had requested the Restatement instruction.

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Construction Claims. Boston, Massachusetts Attorney Keith L. Miller has been representing contractors, subcontractors, equipment suppliers and material suppliers in construction related disputes and claims for over twenty years. He has litigated disputes on both public and private construction projects in state and federal courts, and also before the American Arbitration Association. He has filed and enforced mechanic’s liens, bid protests and has successfully prosecuted and defended numerous performance and payment bond claims. He has also represented contractors in administrative proceedings before government agencies, including states’ attorney general, local building departments, and federal agencies such as OSHA and the U.S. Department of Labor.

A CASE IN POINT:

Contractor obtains jury verdict and collects 1.5 million dollars from City of Boston
for unforeseen asbestos removal work on Brighton High School

S&S Contracting Co., Inc. v. City of Boston:

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A minority owned Boston contractor entered into a $1 million contract to remove asbestos from the Brighton High School in Boston, Massachusetts. After work commenced, significant amounts of additional asbestos were discovered and the contractor was ordered to remove the additional materials, which doubled the work. The contractor submitted change requests, but the City failed to timely process and pay for the extra work, which forced the contractor to file bankruptcy and eventually put it out of business. Keith L. Miller brought an action in Suffolk Superior Court. The case was tried to a jury who returned a verdict in favor of the contractor for 1.5 million dollars with interest. The City appealed. Mr. Miller handled the appeal, which affirmed the lower court judgment. The City paid the full amount of the judgment.

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