$8.3 million verdict when worker falls as he tries to escape runaway construction hoist. San Francisco County.
A 39-year-old construction worker falls 50 feet from an out-of-control construction hoist. Injuries result in an amputated arm and severe depression. Swedish manufacturer of the product denies liability, but is found 57% negligent by jury.
- Case Name: Kammerer v. Alimak Hek AB
- Court and Case Number: San Francisco County Superior Court / CGC-07-470119
- Date of Verdict or Judgment: Thursday, August 23, 2012
- Date Action was Filed: Monday, December 17, 2007
- Type of Case: Construction Site Accident, Products Liability
- Judge or Arbitrator(s): Hon. James McBride
Plaintiffs: Robert Kammerer, 39
Defendants: Alimak Hek AB
- Type of Result: Jury Verdict
- Gross Verdict or Award: $8,328,591
- Net Verdict or Award: $7,495,732
Award as to each Defendant:
Alimak Hek AB (57%): $2,095,732 (economic) + $3,420,000 (non-economic) = $5,515,732.
Sheedy, Inc. (33%): $2,748,435 credit against past lien and future WC payments. Sheedy was not a defendant at trial due to being plaintiff's employer.
- Contributory/Comparative Negligence: 10% as to plaintiff
$499,287 Past Economic Damages
$1,829,304 Future Economic Damages
$2,500,000 Past Non-Economic Damages
$3,500,000 Future Non-Economic Damages
- Trial or Arbitration Time: 19 court days
- Jury Deliberation Time: 4.5 days
- Jury Polls: 12-0 on negligence, design defect, defect causation; various on other. See notes.
Attorney for the Plaintiff: Walkup, Melodia, Kelly & Schoenberger by Michael A. Kelly, Richard H. Schoenberger and Andrew P. McDevitt, San Francisco, CA
Attorney for the Defendant: Dryden, Margoles, Schimaneck & Wertz by Frank E. Schimaneck, Susan E. Foe and Randy Wertz, San Francisco, CA
Plaintiff’s Medical Experts: Alex Barchuk, M.D., physical medicine, KentfieldMarc H. Jacobs, M.D., psychiatry, San FranciscoCornelius Olcott, IV, M.D., vascular surgery, StanfordKaren L. Aznavoorian, M.A., life care planning, Fresno
Defendant's Medical Experts: Raymond Gaeta, M.D., pain management, San MateoBruce T. Adornato, M.D., neurology, Palo AltoMark H. Strassberg, M.D., psychiatry, San Francisco
Plaintiff's Technical Experts: C. Stephen Carr, Ph.D., elevators/lifts/conveyors, Palo AltoMark A. Rhodes, Ph.D., P.E., electrical, LivermorePhillip H. Allman, III, Ph.D., economics, San FranciscoKaren M. Preston, P.H.N., R.N., physical rehabilitation, Sacramento
Defendant's Technical Experts: Fred P. Smith, P.E., mechanical, Alpine, UTRaymond Pietila, Ph.D., electrical, RosevilleAl Marchant, standards, Shelton, CTJames McGowan, M.A., C.R.C., vocational rehabilitation, Santa RosaMark A. Cohen, Ph.D., economics, Lafayette
Facts and Background
Facts and Background:
On Dec. 27, 2005, plaintiff Robert Kammerer, 39, a construction hoist operator, was injured while operating an Alimak Scando 4000 construction hoist at the San Mateo Library jobsite. Plaintiff claimed that as he was transporting a co-employee to the roof, the hoist malfunctioned and would not respond to input from the operator.
Unbeknownst to plaintiff, an electric component within the hoist had short-circuited, rendering the manual controls and safety interlock system inoperable. The electrical failure also rendered the high and low limit switches, door interlock switch and stop button inoperable. The hoist climbed upwards out-of-control. The hoist was equipped with a mechanical lever that acted as a manual shut-off to control the main power. Plaintiff claimed he pulled the lever, but the hoist continued climbing. (Per defense counsel, plaintiff could not actually recall whether he pulled this particular lever.)
Finally, plaintiff opened the hoist gate as the machine passed the roof landing. Opening the door did not cut off power as it was supposed to. Plaintiff feared the hoist was going to come off of the mast and so he attempted to exit the moving hoist. He then fell, roughly 50 feet, landing on the concrete below. The hoist continued upward until it hit the top of the mast and stopped. Plaintiff's co-employee, who remained in the hoist, did not sustain any physical injuries.
That the hoist's electrical circuitry violated American National Standards Institute requirements that existed when the hoist was manufactured in 1971. That as early as 1963, ANSI required a backup electric circuit breaker to prevent just this type of problem in the event of a failure.
That defendant was liable for a design defect under both the risk-benefit and consumer-expectation test. The cost of adding an additional electrical component was minimal and there was no risk in doing so. Moreover, an ordinary consumer, like Kammerer, would expect the hoist to stop when the stop button was depressed.
That Alimak was negligent in failing to inform owners that the design of the mechanical power lever had been changed in subsequent models of the hoist. Alimak had issued a service message but could not prove that the message had been delivered to its customers.
That prior to the jury trial, Alimak Hek AB denied manufacturing the subject hoist; Alimak claimed that the hoist was manufactured by Linden-Alimak AB, which was a different company. The court ruled against this claim prior to trial (see notes).
That there was no negligence or design defect attributable to Alimak.
That per expert for ANSI, who serves on the ANSI committee, the ANSI standards referenced by plaintiff did not apply to the SCANDO 4000 and even if they did, the SCANDO 4000 met them by inclusion of the main power lever.
That plaintiff's injuries were caused by his own negligence along with the negligence of his employer, Sheedy Inc. That the electrical component failed because Sheedy utilized non-original equipment manufacturer repair parts and failed to perform maintenance as specified in the SCANDO 4000 manual. The operation manual instructed owners and operators to inspect the electrical component every 400 hours. The last inspection, according to Sheedy's maintenance documents, occurred more than two years before the incident. The component that failed had not been replaced in over three years. Defense's mechanical engineering expert testified that Sheedy should have modernized the 33-year-old hoist to bring it into compliance with current Cal-OSHA guidelines. This expert further testified that Sheedy failed to adequately train plaintiff and had it done so, his injuries would have been avoided entirely because he would have understood that the hoist could never come off the top of the mast.
That per plaintiff's supervisor at Sheedy, plaintiff had loosened the bolt on the final limit switch, which made it inoperable in turning off power to the motors. That this was said to have been done because the final limit switch was automatically engaged every day when the car went below the final limit, due to a problem with the brake, which required plaintiff to loosen the bolt each time to get it powered up again. This process was said to take 15-30 minutes each time, which was too long a delay for contractors who needed the elevator to be in service at all times.
That the the hoist was manufactured by Linden-Alimak in 1971 in Skelleftea, Sweden.
The only remaining defendant at time of trial was Alimak Hek HB, which is a different company than Linden-Alimak.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Plaintiff was airlifted to Stanford Hospital. He sustained a right elbow dislocation with transection of all arteries and veins, all muscle attachments distal to the elbow, the brachial artery, as well as the median, ulnar, and radial nerves. He also sustained an open fracture of right tibia/fibula and a head laceration.
Arm amputation: Plaintiff's right arm (his dominant arm) was amputated in a mid-humeral, above-elbow amputation that day and he underwent open reduction and internal fixation/intramedullary nailing of right tibia/fibula. He underwent a left hand endoscopic carpal tunnel release with placement of Arthrex Mini Tight Rope implant.
Plaintiff remained at Stanford until Jan. 6, 2006, at which point he was transported to the acute rehabilitation unit of Santa Rosa Memorial Hospital in Fulton for ten days. Plaintiff claimed chronic, right-upper-extremity, severe neuropathic pain, left thumb trapeziometacarpal joint arthrosis secondary to overuse, myofascial pain syndrome involving right paraspinal muscles and right upper trapezii, and low back pain.
Plaintiff claimed that his physical condition and the medications he required as a result of the pain led to his development of major depressive disorder.
- Special Damages Claimed - Past Medical: $377,256
- Special Damages Claimed - Future Medical: $1,926,411
- Special Damages Claimed - Past Lost Earnings: $116,526
- Special Damages Claimed - Future Lost Earnings: $0 - $1,304,890 depending on work life expectancy and future medicals
Demands and Offers
- Plaintiff Demand during Trial: $5,000,000 in past general damages; $200,000 to $500,000 annually for life expectancy of 31 more years (during closing argument per defense counsel.)
Plaintiff's counsel reports they impeached defense's ANSI expert with deposition video clips in which he testified that ANSI did apply. Plaintiff also presented video deposition testimony from the head of research and development for Alimak Hek AB, where he confirmed that ANSI applied.
The parties agreed to have the issue of the identity of the manufacturing defendant tried to the court before jury selection. During discovery, plaintiff's counsel made two separate trips to Sweden to depose employees of Alimak Hek AB. Through that testimony and records from the United States Patent and Trademark Office, plaintiff established that Alimak Hek AB was directly responsible as the entity which manufactured the hoist, independent of any issues of successor liability under a Ray v. Alad theory. After hearing the evidence and arguments, the court held that plaintiff had proven direct liability.
JURY POLLS: 12-0 on negligence; 11-1 on negligence causation; 12-0 on design defect and design defect causation; 11-1 on negligent failure to warn; 11-1 on negligent failure to warn causation; 12-0 on negligence of employer Sheedy ; 12-0 on negligence of employer Sheedy causation; 10-2 on negligence of Kammerer; 10-2 on negligence of Kammerer causation; 12-0 on damages; 12-0 on apportionment.