Mechanic: Shoulder and back injuries from hood collapse
|Failure to Warn, Products Liability - Design Defect, Products Liability - Equipment, Worker/Workplace Negligence - Negligent Maintenance, Products Liability - Strict Liability|
|Arturo Salazar v. AGCO Corporation and Kelomar Farms, No. ECU05296|
|Superior Court of Imperial County, Brawley, CA|
- Michael D. Padilla; O'Mara & Padilla; San Diego, CA, for Arturo Salazar
- Jeffrey M. Padilla; O'Mara & Padilla; San Diego, CA, for Arturo Salazar
- David Rondinone Ph.D.; Mechanical; Berkeley, CA called by: Jeffrey Padilla, Michael Padilla
- Roberto Netter Ph.D.; Psychology/Counseling; La Jolla, CA called by: Jeffrey Padilla, Michael Padilla
- Jeffrey Bernicker M.D.; Orthopedic Surgery; San Diego, CA called by: Jeffrey Padilla, Michael Padilla
- Mark Remus M.A.; Vocational Rehabilitation; San Diego, CA called by: Jeffrey Padilla, Michael Padilla
- Roberta Spoon C.P.A.; Economics; San Diego, CA called by: Jeffrey Padilla, Michael Padilla
- Peter S. Doody; Higgs Fletcher & Mack LLP; San Diego, CA, for AGCO Corporation
- Richard H. Shipley; Hughes Law Firm; San Diego, CA, for Kelomar Farms
- Michael Schmit; Engineering; Jackson, MN called by: Peter Doody, Richard Shipley
- Dominick Addario M.D.; Psychiatry; San Diego, CA called by: Peter Doody, Richard Shipley
- William Bowman M.D.; Orthopedic Surgery; San Diego, CA called by: Peter Doody, Richard Shipley
- self-insured AGCO Corporation
- Nationwide Mutual Insurance Co. for Kelomar Farms
On May 14, 2009, plaintiff Arturo Salazar, 59, a tractor mechanic for Empire Southwest, was performing routine maintenance on a Challenger 845 B Tractor, which was manufactured by AGCO Corp. and owned by Kelomar Farms, at Elmore Farm near the Salton Sea. The tractor has two single-seal gas struts to lift and hold the 340 pound hood assembly.
At approximately 3:45 p.m., Salazar was bent over the engine compartment, changing an air filter, when the hood collapsed onto his lower back, trapping him. However, he claimed that he eventually managed to squeeze out from between the hood edge and the frame after about 20 minutes.
Salazar sued AGCO Corp. and Kelomar Farms. He alleged that AGCO was strictly liable for the accident based on consumer expectations, risk benefit analysis and failing to warn about the hood. He also alleged that AGCO was negligent for failing to retrofit/recall the tractor based on the hood defect and that Kelomar was generally negligent for the accident.
Salazar claimed that when the hood collapsed onto his lower back without warning, he remained trapped and alone for 20 minutes because he could not lift the hood. He alleged that he had to brace the hood with an air filter and part of the strut to keep it from crushing him further, until he was able to squeeze out from between the hood edge and the frame. Thus, Salazar contended that the hood lifting assembly was defective in design, as the struts were underdesigned and lacked a prop rod to brace the hood and eliminate the risk of harm.
Salazar noted that AGCO had received numerous complaints regarding hood strut failures beginning in 2007 and continuing to the time of the incident. He alleged that as a result, AGCO redesigned the gas struts, but failed to issue a recall or retrofit campaign and, instead, only issued a technical bulletin regarding the replacement struts in May 2009. Salazar further claimed that AGCO did not provide any guidance with regard to strut maintenance or replacement, and that it did not retrofit the tractor prior to the accident. In addition, Salazar claimed that Kelomar failed to properly maintain the tractor.
Kelomar argued that it was not properly advised by AGCO with regard to hood strut maintenance and replacement.
AGCO contended that the struts were a 'wear' item and should have been replaced at an earlier service interval, as documented by a mechanic that worked on the tractor four months before Salazar. Thus, it argued that Kelomar and Salazar's employer, Empire Southwest, were negligent for not replacing the struts.
AGCO's counsel contested Salazar's account that the hood went up on its own and stayed up for an hour before allegedly collapsing upon him. The defense's engineering expert testified that it would have been impossible for Salazar to remove the air filter and use it as a wedge to escape from the fallen hood and that there was no evidence of any broken hood strut, which Salazar also claimed he used to escape from under the hood. In addition, AGCO's counsel contended that Empire Southwest's Incident Investigation Report from the day after the accident supported its version of the accident by indicating that the hood struts did not work, that Salazar propped the hood upon the radiator, and that the hood then fell.
Salazar drove back home from the farm and was then taken to an emergency room later that evening. He sustained a lumbar disc herniation at the L5-S1 level, tears of the right shoulder's rotator cuff and labrum, a fractured sternum, and fractured ribs. He also suffered abrasions to his back, chest and neck. Salazar underwent arthroscopic surgery on the right shoulder on Oct. 11, 2010, and a lumbar fusion on Jan. 29, 2012.
Salazar claimed the back surgery improved his level of pain, but that he still experiences daily discomfort and is restricted to light work. He also claimed that he suffers from post-traumatic stress disorder and major depressive episodes from the incident. He has treated with anti-depressants and regular counseling sessions. However, he alleged that because of his medically imposed work restrictions, he cannot return to work as a diesel mechanic. His vocational rehabilitation expert opined that Salazar would not likely return to gainful employment due to his numerous challenges, including lack of education and experience, advanced age, language skills, and the very poor job market in Imperial County, which had a 29-percent unemployment rate.
Thus, Salazar claimed $114,314.16 in damages for his past medical costs. He also sought recovery of damages, including $48,418 for future medical costs, $196,286 for past lost earnings, $459,284 for future lost earnings, $520,000 for past pain and suffering, and $1.45 million for future pain and suffering.
Defense counsel contended that Salazar had pre-existing degenerative conditions to his right shoulder and lumbar spine. However, the defense's medical experts agreed that the causative factor for both Salazar's shoulder and lower back surgeries was the subject accident. Thus, defense counsel agreed with the plaintiff's claim for past medical costs, but argued that future medical costs were worth only $29,000.
The defense's medical experts agreed that Salazar could not return to work as a tractor mechanic, while the vocational rehabilitation expert recommended that Salazar could return to a light duty job or as a driver. Thus, defense counsel argued that Salazar's past lost earnings were worth $148,000 and that his future lost earnings were worth $99,000.
The jury found AGCO liable on all theories, and rendered a defense verdict for Kelomar. Thus, Salazar was awarded $2,098,302.16 in total damages.
$114,314 Personal Injury: Past Medical Cost
$48,418 Personal Injury: Future Medical Cost
$196,286 Personal Injury: Past Lost Earnings Capability
$459,284 Personal Injury: FutureLostEarningsCapability
$280,000 Personal Injury: Past Pain And Suffering
$1,000,000 Personal Injury: Future Pain And Suffering
This report is based on information that was provided by plaintiff's counsel and counsel for AGCO Corp. Counsel for Kelomar Farms did not respond to the reporter's phone calls.