A record verdict in cherry country

Leg injury nets win in Leelanau County Circuit Court

By Douglas Levy

Dolan Media Newswires

Last month, R. Jay Hardin landed a $645,388 verdict for his client, who at age 17 suffered leg and knee injuries in a farming vehicle accident.

Judge Philip Rodgers Jr., who presided over the case, told the Leelanau County Circuit Court administrator said that it was the largest jury verdict in the county's history.

But the verdict amount wasn't the only noteworthy thing about the case, Hardin said.

In his research, he learned that the northern Michigan county had just four civil negligence suits filed there in 2011, only two of which involved motor vehicles.

And, because of the claim involved, not only did Hardin need to find an expert in agricultural engineering, but he also had to understand who he'd be trying his case before.

"The [county's] predominant industry is farming, so you have to be mindful that most of the people in the jury array may have some connection to farming," said Hardin, who, despite being in practice in Traverse City, had never tried a case in his neighboring county.

Colton Brooks was a volunteer worker at Stanton Orchards. In July 2011, his left leg was crushed when the 4,000-pound cherry catcher (a specially made tractor for cherry collection) he was operating lost control and rolled down a hill.

Hardin's arguments were that Brooks didn't receive proper training from the orchard's management, and that the brakes on the 30-year-old cherry catcher weren't maintained properly.

To prove liability on the mechanical side, Hardin sought out Gary VanEe, a retired Michigan State University agricultural engineering professor, who has strong experience in farm equipment hydraulics.

VanEe inspected the machine and testified that the brake system, if properly maintained, would have stopped on the hillside when the brake was pressed. He further explained that the brakes gave the wheels more power because of their placement.

In discovery, Hardin learned that the machine had broken free and rolled downhill twice in 2010, once with the 19-year-old son of the orchard's mechanic operating it.

Hardin had the son concede on the stand that he told the orchard owners that the machine should be replaced after the 2010 harvest, and that a cage should be welded around seat to protect the occupant if the machine did roll downhill again.

"Once that admission happened, my ability for the mechanical issue was established," Hardin said.

When Brooks took the stand, Hardin said he didn't admit liability.

However, he added that Brooks was very candid and did concede to the jury that he continued to operate the machine even though it was somewhat out of his depth to do so.

The jury allocated 15 percent of fault to Brooks, which didn't surprise Hardin.

But he countered that, if an attorney wants to get substantial noneconomic damages, a discussion with the jury about that must take place beforehand.

"The challenge for a plaintiff's attorney, I've always thought that with regard to future damages, people want certainty," he explained. "They want to know that someone's going to have pain.

The verdict was broken down as $134,888 in past and future medical expenses, and $510,500 in past and future noneconomic damages.

Bradley Putney of Traverse City, defense counsel for the damages aspect, said in an email that the damages portions will likely be appealed "for undisclosed residual injury that was allowed despite Plaintiff's counsel having plenty of time to disclose it but failed to supplement discovery and held its disclosure until his opening statement; at that time the judge failed to grant an adjournment."

Messages left for defendants' co-counsel Dan Penning of Suttons Bay and David Tyrpak of Farmington Hills regarding an appeal were not returned.

Published: Mon, Feb 11, 2013

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