Date of Settlement: August 26.
Court and Case No.: E.D.Pa. No. 5:11-cv-04320.
Judge: Eduardo C. Robreno.
Type of Action: Products liability.
Injuries: Finger amputation.
Plaintiffs Counsel: Richard M. Jurewicz, Galfand Berger, Philadelphia.
Defense Counsel: Thomas F. Reilly, Chartwell Law Offices, Philadelphia, for O.A. Newton; John R. O’Rourke Jr., McTighe, Weiss & O’Rourke, Norristown, Pa., for Salina Vortex; Evan B. Caplan, Cozen O’Connor, Philadelphia, for ECCA Calcium Products.
Plaintiffs Experts: Bartley J. Eckhardt, mechanical engineering, Lancaster, Pa.; Dr. Robert W. Mauthe, pain management, Center Valley, Pa.
Defense Experts: Charles J. Longacre, mechanical engineering, Easton Pa.; William H. Daley III, mechanical engineering, Baltimore; Jack D. Hilbert, mechanical engineering, Schnecksville, Pa.; Dr. Andrew Sattel, vocational, Bala Cynwyd, Pa.
Comment: Plaintiff Dennis Tucker, who had been a supervisor at the factory of PVC piping manufacturer Harvel Plastics in Easton, Pa., alleged in his complaint that he lost two fingers when he attempted to use a coat hanger to dislodge what he thought was a calcium carbonate build-up in the hopper of a blending system designed by defendant O.A. Newton but was actually a piece of wood that had been mixed in with the ground calcium carbonate packaged by defendant ECCA Calcium Products.
Tucker alleged in his complaint that he had turned off the blending system before attempting to dislodge the build-up but the sliding gate valve, made by defendant Salina Vortex, dropped down and amputated his fingers when he leaned on the metering weight basket that holds the mixed calcium carbonate.
Tucker alleged in his complaint that O.A. Newton was negligent in its design of the blending system by failing to install a braking system that would shut down the Vortex sliding gate when the rest of the blending system was turned off.
Tucker also alleged in his complaint that Vortex was negligent for failing to install a safeguard to prevent access to the sliding gate and that ECCA was negligent for allowing a foreign piece of wood to make it into a bag of calcium carbonate.
But O.A. Newton argued in its pretrial memorandum that Tucker knew how the sliding gate operated and that shutting down the electrical power did not deactivate the gate.
O.A. Newton also argued in its pretrial memorandum that numerous changes to the system had been made by Harvel Plastics since it was first installed, including the installation of replacement gates by Vortex.
Vortex, meanwhile, in its answer to the complaint, said Tucker failed to follow the proper safety procedures when using the machine.
ECCA, in its memorandum in support of its motion for summary judgment, argued that even if it had been a foreign piece of wood in the calcium carbonate that initially clogged the machine, Tucker was contributorily negligent for attempting to dislodge it by putting his hand in the sliding gate area without following the proper safety precautions to ensure the blending system was powered down.
According to information provided by Tucker’s counsel, Richard M. Jurewicz, the court had placed the case on hold pending the outcome of the Pennsylvania Supreme Court’s ruling in Tincher v. Omega Flex, in which the justices have agreed to hear arguments regarding whether Pennsylvania should adopt the Restatement (Third) of Torts over the Restatement (Second) of Torts.
Eventually, the parties agreed to settle for a total of $270,000 — $245,000 to Dennis Tucker and $25,000 for his wife Denise Tucker’s loss of consortium claim, according to court documents.
According to Jurewicz, O.A. Newton is responsible for $155,000, Salina Vortex is responsible for $85,000 and ECCA is responsible for the remaining $30,000.
Jurewicz said he thought all the parties involved appreciated Robreno’s decision to halt the case pending the outcome of Tincher rather than attempt to guess which restatement the Supreme Court was likely to apply.
According to Jurewicz, Robreno’s decision is part of what drove the settlement, as all the parties involved recognized that it could be years before Tincher is resolved.
Counsel for O.A. Newton, Thomas F. Reilly, said he thought Magistrate Judge Thomas J. Rueter, who assisted with the settlement negotiations, did a good job.
Evan B. Caplan, counsel for ECCA, and counsel for Vortex, John R. O’Rourke, could not be reached for comment.
— Zack Needles, of the Law Weekly