Sullivan & Associates, LLC

Highway Equipment Company Appeal

2023-06-14T15:07:08Z

The Plaintiff in this products liability case suffered a near amputation of his right hand while performing maintenance on a sand spreading machine manufactured by the Defendant, Highway Equipment Company (“HECO”). The Plaintiff claimed that his sleeve became entangled in the unguarded chain and sprockets of the machine’s conveyor belt, which caused his hand to be pulled into the machine and nearly amputated. Plaintiff alleged defective design and a lost consortium claim. Defendant argued the machine was properly designed but was modified to defeat the safety design of “guarding by location” in which the spreader was designed to be mounted within 4 inches of the truck’s cab to prevent access near the sprockets and chains which did not have a physical guard. (Please see the warning on the HECO Spreader at the bottom of this page). However, the properly mounted machine was later improperly remounted on a different truck with almost two feet of space, defeating the guarding by location design and allowing the Plaintiff access to this unguarded and dangerous area, where he was injured. Based on blood alcohol testing performed at the hospital within hours of the accident, the Plaintiff was also intoxicated at the time of his injury. Following a jury verdict for the Defendant on all counts, the Plaintiff appealed to the Massachusetts Appeals Court. In his Appellate Brief, and at oral argument held in May, 2014, the Plaintiff argued that the trial court judge’s decision to instruct the jury on the Plaintiff’s unreasonable use of the machine was not supported by the evidence at trial and the instruction as given to the jury was improper in that it failed to instruct on the Plaintiff’s subjective knowledge of the magnitude of the risk that he appreciated on the day of the accident and because the instruction improperly equated unreasonable use to contributory negligence. These mistakes by the trial court judge, Rose argued, amounted to reversible error. In September, 2014, the Appeals Court released its ruling, agreeing with each of HECO’s arguments made in HECO’s Appellate Brief and during arguments and affirming the verdict for HECO at trial in 2009. In disagreeing with each of the Plaintiff’s arguments, the Appeals Court held the evidence put forth by the Defendant at trial was (1) sufficient to support the judge’s submission of the unreasonable use defense to the jury and that (2) the instructions, as given, were proper. At oral arguments, the Plaintiff asserted that HECO was required to prove his subjective knowledge of the danger posed by the spreader through a direct admission by the Plaintiff. However, the Appeals Court held that this was not the correct standard and that the Plaintiff’s testimony as to his familiarity with the spreader and other heavy machinery, his inconsistent statements about the danger he perceived from the spreader, his disregard of instructions on how and where to properly oil the spreader’s chains and sprockets, in addition to the Plaintiff’s consumption of alcohol on the day of the accident collectively gave the trial court judge sufficient grounds to instruct the jury on the unreasonable use defense. The Plaintiff further argued that the trial court judge’s use of the phrase “this is the implied warranty version in effect of the contributory negligence defense described earlier” to transition from his instruction on the implied warranty claim to his instruction on affirmative defense of unreasonable constituted reversible error. The Appeals Court again disagreed and held that while the judge confused contributory negligence with comparative negligence (there is no contributory negligence in Massachusetts), this language did not improperly link the absolute defense of warranty liability with the apportionment of liability principles of negligence (comparative negligence) as the Plaintiff had asserted. Jury verdict for the Defendant affirmed on appeal to the Massachusetts Appeals Court.

The “Meatball Case” – Defense Verdict in Product Liability Action

2023-06-14T15:07:14Z

Attorney Christopher Sullivan Successfully Defends Rich Products in Multi-Million Dollar Negligence and Breach of Warranty Suit

In April, 2014, a Middlesex County Jury returned a defense verdict in favor of Rich Products Corporation (“Rich”) after a nearly month long trial in Santiago v. Rich Products Corp. Plaintiff alleged that meatballs manufactured by Rich for the Child Nutrition Program, and served in Lowell Public Schools, were unreasonably dangerous and caused the minor Plaintiff to choke, resulting in profound brain damage and permanent disability. The Plaintiff, Mr. Santiago, incurred over $1,800,000.00 in medical bills, an estimated $12,000,000.00 in future medicals and in excess of $1,200,000.00 in alleged lost earning capacity. Together with Attorney Lawrence Kenney of Sloane & Walsh, Sullivan & Associates Attorney Christopher Sullivan showed the jury that Rich was not responsible for this terrible accident which occurred while Mr. Santiago, age seven at the time, was engaged in a meatball eating race in his elementary school cafeteria.

This case received some notoriety due to the novel theory of liability put forth by the Plaintiff: that while most meatballs contain soy in some form, the Soy Protein Isolate (SPI) used in Rich’s meatball to increase protein and reduce fat, created a tougher and chewier meatball than meatballs not using SPI. Plaintiff called two food scientists; a warnings expert and a pediatric choking expert who testified that Rich’s unique formula and the reasonably foreseeable conduct of the minor Plaintiff contributed to this tragic accident. Plaintiff further alleged that the meatball was the perfect size and shape to block a child’s trachea and therefore increased the choking hazard. Finally, Plaintiff claimed that Rich failed to properly warn of potential choking hazards by not placing a warning on the meatball package similar to warnings that some hot dog manufacturers voluntarily place on their packaging.

Also of note is that the Court granted Rich’s motion to bifurcate. This appears to be one of the first successful motions in Massachusetts to bifurcate a products liability trial (involving only one defendant) into liability and damages phases. The damages phase became unnecessary after the jury’s defense verdict on liability. While bifurcation into liability and damages phases is routine in other states such as New York, this strategy has rarely been successfully used in a single defendant products liability action in Massachusetts before.

In addition to filing suit against Rich, the manufacturer, Plaintiff’s attorneys also sued the City of Lowell and the ambulance company that responded to the 911 call. Following an extended discovery period (in which Plaintiff’s attorneys were given numerous extensions to conduct testing and no fewer than 57 depositions were taken), the City of Lowell was granted summary judgment under the Massachusetts Tort Claims Act (MTCA), which prohibits suits against municipalities over discretionary functions. Plaintiff argued the lack of supervision in the cafeteria was a cause of the accident, but the court ruled that the number of adults assigned to supervise was a discretionary function and therefore precluded liability against the school under the MTCA. The ambulance company settled well before trial and Rich was left as the sole defendant at trial.

The Plaintiff’s elementary school was a chaotic place on the day of the accident. Upper level staff was away from the school for a variety of reasons; the principal was in the emergency room due to a school related incident, the vice principal was out sick and other supervisory administrators were unavailable. The ensuing breakdown in the chain of command resulted in a delay in calling 911. Mr. Santiago was unresponsive by the time an ambulance arrived. Paramedics eventually cleared Mr. Santiago’s trachea and got him breathing, then transported him to a local hospital. However, the lack of oxygen suffered while choking, sadly caused permanent, irreversible brain damage and rendered Mr. Santiago a quadriplegic, blind and unable to speak, eat or perform other normal functions.

When they noticed Mr. Santiago was choking, teachers on duty first slapped him on the back and then twice attempted the Heimlich maneuver in their ultimately unsuccessful efforts to dislodge the meatball. Defense expert witnesses utilizing instrument testing and trained test panel analysis rebutted Plaintiff’s expert witnesses’ testimony that the Defendant’s meat product was unreasonably tough, chewy and constituted a choking hazard. After one full day of deliberations, the jury returned a verdict in favor of the Defendant. April, 2014

Sesame Seeds & One Million Dollar Peanuts

2023-06-14T15:07:18Z

We represented the Plaintiff in a business dispute resulting in a case filed in Suffolk Superior Court and tried to a successful conclusion.

Our client, Newly Weds Foods, Inc. (NWF), an international company specializing in the manufacture of breadings, spices and rubs, brought this civil action against a raw materials supplier, Superior Nut Company (SNC). SNC provided NWF with approximately 12,000 pounds of toasted sesame seeds over the course of several shipments which were discovered to have been contaminated with peanuts, a known common allergen.

This action was based upon breach of contract, breach of warranty of merchantability and the consumer protection statute, G.L. c. 93A §11 (business to business transactions).

After a 3 week trial the jury found for our client NWF on the breach of contract and breach of warranty claims. The jury also issued an advisory finding on the G.L. c. 93A § 11 claim and found SNC had not only engaged in unfair and deceptive practices, but also that they had done so knowingly and willingly.

These findings were adopted by the trial judge. The judge also awarded our client its full attorneys’ fees in prosecuting the action and all costs incurred.

The total amounts recovered for our client were $217,556.00 on the breach of contract and warranty claims, double damages of an additional $217,556.00 pursuant to G.L. c. 93A together with award of $217,393.28 in attorneys’ fees and costs for a total award of $652,505.28.

The case was appealed by the Defendant and the Massachusetts Court of Appeals upheld the verdict. The final award to the Plaintiff including interest and costs was in excess of $1,000,000.00.

HIP Success!

2023-06-14T15:07:23Z

[nap_names id="FIRM-NAME-1"] attorneys were able to obtain a successful settlement in a products liability action from a national manufacturer of medical devices including artificial hip replacement systems designed and manufactured by DePuy, Inc., the makers of ASR metal-on-metal hip products.

The flawed design of this artificial hip included a metal femoral head (ball) connected to a metal acetabular cup (socket). The grinding of the ball on the surface of the socket through foreseeable daily use created an unstable interface.

The friction which was created between these two metal surfaces caused the hip implant to fail. This resulted in a significant settlement of $237,500.00.

Exploding Socket Bit Nets $150,000

2023-06-14T15:07:28Z

[nap_names id="FIRM-NAME-1"] successfully obtained a favorable settlement in the amount of $150,000 in a products liability action arising out of a defective star point socket bit. [nap_names id="FIRM-NAME-1"] brought a subrogation action in Suffolk Superior Court against an overseas product manufacturer and wholesale tool supplier after the subject tool shattered causing a significant eye injury to an automotive mechanic. It was alleged that a material deficiency in the manufacturing process (heat treatment, chemical composition, microstructure issues) within the subject bit more than likely contributed to the catastrophic torsional overload resulting in the shattered bit entering the claimants eye. The Firm retained a Professional Engineer and Metallurgy Expert to establish the subject tool was defective and in an unsafe condition when it shattered while being used in a reasonable manner and in a customary application for which subject tools are designed and intended. The matter was settled prior to trial in 2016.

Plaintiff Blocked from Bringing Engine Suit in Mass

2023-06-14T15:07:32Z

This case arises from the sale of a custom designed race car engine block. The Plaintiff, a Massachusetts resident, alleged the Defendant, a Texas Corporation, sold him a defective product and brought suit in Massachusetts. The Plaintiff had called the Texas-based Defendant about ordering the engine block and then later faxed an executed order form to the company. Sullivan & Associates, LLC filed a motion to dismiss based on lack of jurisdiction on behalf of the Defendant. The Plaintiff argued the Defendant subjected itself to Massachusetts jurisdiction by not only completing the transaction with him, but also by maintaining a “highly interactive website,” which purposely directed activities at Massachusetts residents. However, Sullivan & Associates successfully argued: (1) the forum selection clause in the order form, stating the venue for disputes would be Texas, was not irrational; (2) the Defendant owned no property, maintained no offices, and did not advertise in Massachusetts; (3) the subject sale was an isolated transaction; and (4) the Defendant’s generally non-interactive website was not enough to establish jurisdiction. The court after consideration of all the issues dismissed the case in 2016.