Nebraska Small firm wins $21.1 million in retrial over failed lifeline Failure-to-warn claim was sole issue to be tried

By Sylvia Hsieh

The Daily Record Newswire

BOSTON, MA -- A four-lawyer firm won a jury verdict of over $21 million against the manufacturer of a self-retracting lifeline that failed when an iron worker wearing the lifeline was struck by a load of aluminum plates while working on a raised worksite in downtown Omaha, Neb.

The winning attorney Robert Pahlke, faced some difficult hurdles. An earlier trial had ended in a directed verdict for the defendant. That decision was reversed on appeal, leading to the new trial, but the defense had already seen the plaintiff's whole case. Also, the trial judge had knocked out claims for defective manufacture and design on summary judgment, leaving a failure-to-warn claim as the sole issue to be tried.

"One of our biggest challenges was this was a warnings case and a warnings case only," said Pahlke of the Pahlke Law Group in Scottsbluff, Neb.

To make matters worse, the plaintiff's star liability expert suffered an aneurism between the two trials so he was unavailable to testify live, requiring the lawyers to read his testimony from the first trial to the jury instead.

"It's not the ideal way to get in evidence. It's kind of boring for the jury," said Britany Shotkoski, an attorney with Harris Kuhn Law Firm in Omaha, who also represented the plaintiff and tried the first case.

The verdict did more than surprise defense attorney Lindsay Arthur Jr., who tried the case twice on behalf of manufacturer DB Industries.

"Shocked would be a better word," he said. "I think the jury believed it's a good idea to create a warning for every conceivable safety hazard no matter how remote that hazard might be and no matter if workers already know about it."

In addition to seeking judgment notwithstanding the verdict, Arthur, a shareholder at Arthur Chapman Kettering Smetak & Pikala in Minneapolis, plans to appeal based on whether the jury should have been allowed to apportion damages in the strict liability claim among other parties who weren't defendants or had settled before trial, including the employer, contractors and safety company.

On the day of the accident in July 2003, Ronald "Tim" Bacon wore a harness connected to a self-retracting lifeline that was secured to a beam while he worked on the fire escape on the second floor of the 16-story Qwest Convention Center.

A crane carrying a load of eight aluminum deck plates weighing over 700 pounds was navigating above him before the accident.

According to the plaintiff's theory of the case, one of the plates fell from the load and Bacon deflected it with his arm, then a second plate fell and struck his lifeline. The lifeline failed to stop Bacon from falling onto the deck 13 feet below. The accident paralyzed him from the waist down.

Pahlke argued that the maker of the lifeline should have included on its warning label and in its manual that it could fail if struck by overhead objects.

"There was no warning that if something hit the lifeline it could fail catastrophically," said Pahlke.

A co-worker on site and an electrician working inside the building testified that Bacon deflected the first plate, but neither witnessed the full sequence of events or his fall.

The defendant disputed this version of facts, instead theorizing that the whole load fell at once on Bacon, exceeding the product's weight capacity of 310 pounds.

"724 pounds of deck plate were dumped on this guy, that's what caused the accident. ... Who in their right mind would expect a product is going to work under those circumstances?" said Arthur.

Instead, Arthur pointed to what he argued were the many OSHA and industry-standard workplace violations at the site permitted by the employer, the crane operator and the safety company, such as working under a crane and hoisting a load over a worker.

"From my perspective this was about the easiest case for me to decide to try than any case I had ever had. [The plaintiff] knew all the risks, he admitted he knew all the risks and Nebraska law doesn't require a manufacturer to warn about risk that are known," said Arthur.

But Pahlke argued that the defendant was just trying to blame everyone else.

e said key testimony came from a defense expert, the company's in-house engineer, who said the company didn't include a warning about falling objects because there wasn't a high enough occurrence rate.

"If there was an occurrence rate, that means it occurred. They knew things could fall," said Pahlke.

Bacon testified that he had a habit of testing his lifeline to make sure it was functioning, and the day of the accident he yanked on it three times after putting it on.

A lifeline is like a parachute, Pahlke told the jury. "You only need a parachute if something else goes wrong, and you only need a lifeline if something else goes wrong. ... He trusted it with his life. Unfortunately when he needed it most, it failed him."

Bacon, who will never walk again, has been plagued with bed sores and is at a high risk of having his legs amputated. He testified that since the accident over seven years ago, he remembers only five minutes -lying in bed last spring - when he was pain-free.

"I was afraid to move and afraid to breathe because I didn't want to do anything to make the pain come back," testified the 55 year-old plaintiff.

Of course, five minutes later it did.

"He's not a whiner and he wasn't there feeling sorry for himself," said Pahlke.

Between the two trials, Bacon was convicted of shooting a man in a dispute outside a bar. Bacon claimed they were warning shots, but a jury disagreed and he was sentenced to two years of probation.

Pahlke said the felony conviction came up at trial but the defense didn't push the point and jurors didn't seem interested in it.

The jury, which included three nurses and two people with some experience in construction work, awarded just over the $21 million that Pahlke sought, including $4.2 million in past and future medical costs and lost wages and nearly $17 million in noneconomic damages.

In closing arguments, Arthur tried to demonstrate how ridiculous it would get if companies warned about every possible risk by showing the jury some hyperbolic warnings of his own.

"I've got a book of silly warnings, and I blew up five of them to show the jury how silly warnings can get when you're warning about things that anybody with a bit of common sense would know," said Arthur.

One of the warnings illustrated a woman falling off her bathroom scale and lying on the floor with a bruised head. The caption read: "Caution: be careful when stepping on and off the scale." Another, Arthur's favorite, depicted a mother folding up a baby stroller to put in the trunk of her car while the baby is still in the stroller. The silly warning read: "Caution: Remove baby before folding."

In a subliminal reference to the McDonald's coffee case, Arthur also included a picture of a coffee spill that read: "Caution: Hot coffee is hot."

"The McDonald's case is an example of what jurors think is a frivolous lawsuit, so the coffee warning was one of [the warnings I chose]," Arthur said.

But Pahlke turned the argument around in his closings to make the defendant seem insensitive, telling the jury, "Maybe they think safety is a joke or a cartoon, but you don't see Mr. Bacon laughing."

Published: Tue, Feb 1, 2011