Miller Weisbrod Wins $3,000,000.00 Arbitration Award

One of the highlights of 2015 for Miller Weisbrod was a $3,000,000 Arbitration Award for a man that lost his right hand as a result of a work place injury. Greg Turner was working at a local chocolate/candy factory operating an industrial chocolate mixer. While dumping melted chocolate from plastic buckets while the mixer was turning, he accidentally dropped a bucket into the mixer. Turner then reflexively reached into the mixer to retrieve the bucket. The blades of the mixer caught Turner's right hand taking it into a pinch point on the side of the mixer severing the hand at the wrist. A surveillance video caught this incident partially on tape — though the point of operation was obscured by the lid of the mixer.


Surveillance image

Turner's employer was a non-subscriber to worker's compensation. The employer had an injury benefit plan but denied Turner benefits because a post-accident drug screen showed amounts of two drugs in his system. Our firm filed suit and the case was removed to arbitration because the plan signed off on by Turner included an Agreement to Arbitrate.

Our claims of negligence involved the failure of the mixer to have an adequate guard over the opening of the mixer or, more practically, to have a lock-out device on the mixer that would shut the mixer off when the lid was lifted. Through deposition questioning, the Defendant's supervisors admitted that it was not necessary to have the lid open and the mixer on and turning while loading the chocolate. Our position was that the machine should be loaded with the machine off-but the company had trained all employees to load the mixer while it was on and turning. In fact, the surveillance video showed Turner's supervisor watching him for an extended period of time loading the mixer while it was on and turning.

The employer claimed that risks of the mixer were open and obvious and that it had warned Turner of the risks of sticking his hands into the machine; therefore, there was no duty to take additional precautions. In support, they cited numerous cases in the premises liability context that affirmed this position. We took the position that the instrumentality (the mixer) was dangerous and this was a separate duty in the non-subscriber context. The arbitrator agreed with this argument and denied a "no duty" motion. The Texas Supreme Court has recently also agreed with our position in a similar case Austin vs. Kroger Co., 465 S.W.3d 193 (Tex. 2015)

The Defense hired two main experts including a safety expert arguing against the need for a lock-out device. This expert was revealed to have no experience in machine guarding and expressed some irrational opinions that we pushed on to destroy his credibility. The second expert was a well-known prosthetic expert who advanced the theory that Medicaid was the industry standard for reasonable of charges for prosthetics and arguing that instead of a myeo-electric hand our client should get a hook and a rubber hand. We showed that he had been "out of the game" as far as upper limb prosthetics and that his "opinion" that Medicaid was the industry standard for billing rates was not supported by anything other than his word and then at arbitration confronted him with a prior case where he had taken the opposite position when hired by the plaintiff.

Below are a couple of short examples of the deposition cross examination:





At the Arbitration we proved that all the co-employees who encountered Turner on the day of the incident found him not to be impaired — eliminating the drug screen argument.

At the end of the hearing, the Arbitrator issued an award finding negligence and damages in the amount of $3,044,888.33. Miller Weisbrod has partnered with law firms across the state of Texas on a referral and joint venture basis to pursue cases of catastrophic injury and wrongful death arising from construction and work site incidents. Miller Weisbrod would welcome the opportunity to work with you to obtain justice for your clients injured or killed on the job.

Miller Weisbrod,LLP is a national law firm specializing in catastrophic injury and wrongful death cases. Partners Clay Miller and Les Weisbrod have built the firm’s reputation with successful verdicts, settlements, appeals and favorable decisions across the country. With resources and finances available to take on the powerful interests that have caused harm, the firm is committed to providing quality representation for clients who are seriously injured and families of victims who are killed as a result of the negligence or misconduct of others. Miller Weisbrod has offices in Dallas and affiliate offices in Houston and Austin. For more information call (888) 987-0005 or visit www.millerweisbrod.com