Frank DePasquale v. Morbark Industries v. Bob Wade’s Ground Maintenance ( Third-party Deft.)

Case Name

Frank DePasquale v. Morbark Industries v. Bob Wade’s Ground Maintenance ( Third-party Deft.)

Type of Injury

ABOVE-THE-KNEE AMPUTATION

Occupation

employed by third-party deft. Bob Wade’s maintenance

Location

Westchester, NY

Verdict

$13,699,309, reduced to $6,849,654.50 for 50% comparative negligence of Pltf. (6/0).

Verdict Amount

$6,849,654.50

Case Details

XI/1-1 PRODUCT LIABILITY WOODCHIPPER ABOVE-THE-KNEE AMPUTATION REMITTITUR REFUSED

Frank DePasquale v. Morbark Industries v. Bob Wade’s Ground Maintenance ( Third-party Deft.) 4583/89 6-week trial Verdict 10/23/92 Post-trial decision 6/8/93 Judge Samuel G. Fredman, Westchester Supreme

VERDICT: $13,699,309, reduced to $6,849,654.50 for 50% comparative negligence of Pltf. (6/0). Remaining liability: Morbark 25%; Bob Wade’s Ground Maintenance 25% negligent. Breakdown: $2,000,000 for past pain and suffering; $85,000 for past medical expenses; $74,309 for past lost earnings; $40,000 for past custodial care; $4,000,000 for future pain and suffering; $1,000,000 for future medical expenses; $6,500,000 for future lost earnings. Bob Wade’s Ground Maintenance settled for $560,000 at the end of the damages trial. Jury: 5 male, 1 female.

In a 19-page decision dated 6/8/93, Judge Fredman denied Deft.’s motion to reduce or set aside the award. See below.

Pltf. Atty: David J. Meiselman of Meiselman, Farber, Packman & Eberz, Mt. Kisco

Deft. Atty: Jonathan Kolbrener for Peter D. Kolbrener, Garden City, for Morbark

Richard C. Baker for Schiavetti, Geisler, Corgan, Soscia, DeVito, Gabriele & Nicholson, Manhattan, for Bob Wade

Facts: The accident occurred on 8/23/88 at a residence on Bedford Rd. in Mt. Kisco. Pltf., an 18-year-old laborer, was employed by Third-party Deft. Bob Wade’s Maintenance (25% liable). Pltf. testified that he was feeding a tree limb into the chute of a Morbark Eegor Beevor Woodchipper, designed and manufactured by Deft. Morbark Industries (25% liable). The machine weighed several thousand pounds and measured 6 feet by 8 feet by 6 feet. As he was feeding the limb into the chute a branch protruding from the limb became stuck against the outside edge of the feed chute, preventing the branch from going through. Pltf. contended that he kicked at the branch to free it, but his momentum carried his foot into the feed chute, where it came in contact with the feedwheels.

Pltf. contended that the woodchipper was negligently designed in that the feed chute was too low to the ground and too shallow in depth from front to back, which allowed the operator to be exposed to the feedwheels. He also contended that there was no emergency kill switch to shut off the machine and no way for someone who is trapped by the wheel to free himself . Pltf. also contended that the feedwheel control bar was inaccessible to anyone trapped by the wheels.

Defts. contended that Pltf. was negligent for kicking at the branch and for allowing his leg to come in contact with the feedwheels.

Injuries: above-the-knee amputation of the left leg requiring four operations; psychological injuries with temperamental outbursts, crying jags, frustration, inability to socialize. A body builder before the accident, Pltf. testified that he suffered a loss of body image and claimed that he has become withdrawn from his friends. Pltf. also claimed that he has difficulty wearing his prosthesis. He was hospitalized for 1 month after the accident. He also spent 1 month in a rehabilitation facility. Evidence indicated that he will require future surgery. Pltf. Experts: James Bookhamer, White Plains; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Conrad Berenson, Ph.D., economist, Woodbury; Paul Glasgow, P.E., engineer, Valley Stream; Dr. Leslie Kurian, psychiatrist, Mt. Kisco; Eileen Bloomingdale, Ph.D., psychologist, Scarsdale; Dr. Carroll Lesesne, plastic surgeon, Mt. Kisco; Dr. Peter Stern, rehabilitative medicine, Rye. Deft. Expert: Robert Felix, arborist, Manchester, New Hampshire.

In a 19-page decision dated 6/8/93, Judge Fredman denied Deft.’s motion to reduce or set aside the award, noting that he “cannot view the future life of this amputee as so undeserving of an award of this nature as to consider it excessive, once the jury made its calculations.” Decision at p. 5. The court noted that it was ” . . . disturbed but unimpressed by the broad brush of hostility, contempt and ridicule visited by these attorneys upon one another in these post-trial papers.” Decision at p. 17.