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A Philadelphia Common Pleas Court jury has awarded $3.5 million to an electrician who suffered electrical burns while installing a fuse. His former wife, to whom he was married at the time of the accident, received $350,000 for loss of consortium, bringing the total verdict to $3.85 million. The verdict, which came down late last week, is “hopefully” the end of a long case that was reversed and remanded by the Superior Court for a new trial in 2000, said George J. Badey III of Philadelphia-based Sheller, Ludwig & Badey. Badey represented plaintiff and electrician James Bitting, along with Sheller Ludwig associate Michael H. DiGenova. The case, Bitting v. Kearney National Inc., was originally tried in 1998 and then reversed and remanded for a new trial by the Superior Court. It was denied allocatur by the state Supreme Court. Bitting was severely injured while installing a fuse at a Hygrade Food Products Co. plant in 1993 while working with an electrical switch manufactured by Kearney National Inc., according to court papers. Bitting sued Hygrade; its parent company, Sara Lee Corp.; and Anthony Ross, Hygrade’s electrician. Bitting also named as defendants Kearney, PECO Energy and Penn Panel and Box Co., the manufacturer of the switchgear surrounding the switch. According to Bitting’s court papers, Ross pulled a switch that caused an explosion, damaging the switch Bitting was to work on the next day. Because Ross pulled the handle of the Kearney switch to its “off” position after the explosion, no one could tell there was live current running through the broken switch, court papers said. When Bitting, who was employed as an electrician by the Gowder Electric Co. Inc., went to replace the damaged fuse in the switch the next day, he was shocked by 13,200 volts and suffered second- and third-degree burns to his chest, abdomen, both hands and arms, and his neck and chin, according to the complaint. In his complaint, Bitting claimed that PECO was negligent because four of its linemen had confirmed the day before Bitting was injured that the switch did not contain live current, and that Ross and Hygrade were negligent for their “careless operation and/or maintenance” of the switch. Bitting brought a strict liability complaint against Kearney, alleging it defectively manufactured and designed the switch he worked on. He also raised strict liability and negligence claims against Penn Panel. He claimed in court papers that he experienced “extreme pain, suffering, permanent scarring and disfigurement, embarrassment, inconvenience and mental anguish,” and earnings losses. Bitting was 43 at the time of the accident. More than 26 percent of Bitting’s body had second- and third-degree burns, and he was given last rites during his 32 days in the burn unit at St. Agnes Medical Center, Badey said. “They didn’t think he was going to make it,” he said. Bitting first went to trial in 1998, and, at the close of the evidence, a directed verdict was granted for Kearney and Penn Panel, the manufacturer of the box that housed the Kearney switchgear. The trial court concluded that Bitting was an “unintended user” of the switch — which required dismissal of his strict liability claims. Bitting was not a licensed electrician but was permitted to work under Gowder Electric’s license for 10 years. It was the first time he had ever installed fuses on this type of equipment, according to court papers. In the 1998 trial, the jury returned a verdict against PECO and Hygrade for $2.3 million for Bitting and $75,000 for his wife, Helen. The case was appealed to the Superior Court, which reversed the verdict. The Superior Court concluded that the trial court had erred in holding that Bitting was an unintended user. The court remanded the case for a new trial on all issues against defendants Kearney, PECO and Hygrade. But it held that the statute of repose barred a claim against Penn Panel because its box was installed at the Hygrade plant in 1971 and Bitting’s accident occurred in 1993. The statute time-bars claims against those who make improvements to realty after 12 years, Badey said. Bitting reached a settlement with PECO and Hygrade while the case was on appeal to the Superior Court. But both PECO and Hygrade agreed to participate in the second trial. Both companies were represented by PECO’s in-house counsel, Kristopher Keys. While Hygrade paid a confidential settlement, PECO’s settlement stipulated that PECO would recover 50 percent of the net Bitting recovered at trial, up to a cap. Badey declined to name the amount. The new trial began last month and lasted three weeks before Judge Esther Sylvester. Badey said that his biggest challenge was getting the jury acclimated to the lingo of electrical engineering, which is sometimes counterintuitive to laymen terminology. In electrician-speak, an “open” switch means no live current is running through the switch; a “closed” switch means there is live current running. But since most people associate the word “open” with “on” and the word “closed” with “off,” the terminology presented a challenge, Badey said. “I really hammered that home in my opening statement to the jury,” he said. “I explained that to electricians, ‘open’ refers to a break, or an open gap, in electrical current. And to an electrician, the term ‘closed switch’ derives from current being unbroken, or closed, with no gap. And, therefore, a closed switch has live current.” Bitting’s expert witnesses were Walter Farley, an electrical engineer from Fairless Hills, Pa.; Frederick DeClement, M.D., a burn specialist with Temple University; Rosette Plotkin, a neuropsychologist from the University of Pennsylvania; James Bonner, a physiatrist (rehabilitation specialist) from St. Agnes Hospital; and Arthur Brown, a plastic surgeon affiliated with The Cooper Hospital-University Medical Center. Dr. Brian Sullivan of the Center for Forensic Economic Studies in Philadelphia was Bitting’s economist. Badey said Plotkin testified to Bitting’s short-term memory loss and his “emotional dyscontrol syndrome,” which set in after the accident and which Bitting asserted contributed to the breakup of his 23-year marriage. Bitting is now unable to control his anger at times and also suffers from peripheral neuropathy, Badey said. Badey said he thought the jury was affected by DeClement’s testimony that “a burn injury is a family injury.” DeClement explained the stress that the loved ones of burn victims experience, he said. Bitting underwent 17 skin-graft surgeries in three years and had to wear pressure garments for a year-and-a-half following his injury. He had to cover his burned skin with Crisco before donning the special clothing, Badey said. Badey also said he believed the jury found Bitting credible because Bitting insisted on returning to light-duty work just six months following the accident. “He didn’t have to do that, and none of his doctors thought he should do that,” Badey said. “It also reduced his wage losses. But that wasn’t what he was after. He just wanted to work again.” The 12-member jury deliberated on May 3 for one hour and 40 minutes before returning a verdict for Bitting, Badey said. The jury found all three defendants liable. It assessed Kearney 40 percent liability, Hygrade 40 percent and PECO 20 percent. Badey said he expects delay damages to add approximately $900,000 to the award against Kearney. Kearney was represented by Joseph Cullens of Cullens & Cullens in Cartersville, Ga., and locally by Edward C. German of German Gallagher & Murtaugh in Philadelphia. German did not returns calls by press time. Badey said the defense presented a theory that the short circuit that occurred the day before the accident was the kind that its switchgear was not meant to handle. But Badey argued that the surge that went through the switch was less than 10 percent of its rated capacity. Kearney presented as experts its former vice president of engineering, William Olive, and Francis Wells, a professor of electrical engineering at Vanderbilt University in Nashville, Tenn. Badey said Kearney had planned to present other experts but later opted not to do so.

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