On October 2, 2004, Gary Hoover was operating a tractor-driven post hole digger for a fence project in his backyard in upstate Cambria, New York. This is a very dangerous piece of equipment.

Hoover’s 16 year old step-daughter, Jessica, was helping him by  holding the digger’s gear box to line up the auger so a straight hole could be dug. After several holes were dug, Lori’s coat became snagged by a protruding bolt on the unguarded drive shaft of the digger and she was dragged into the driveline; her right arm was traumatically severed above the elbow.

In the ensuing lawsuit, claims were asserted against the product’s designers and manufacturers, distributor,  retail seller and owner.

A one month trial in Niagara County concluded on April 7, 2011 with a jury verdict that the auger was defectively designed.

The jury apportioned liability among the defendants as follows: the designer and manufacturer – 30%, the distributor – 35%, the owner – 30%, the operator – 3% and the retail seller – 2%.

Pain and suffering damages were awarded in the sum of $5,000,000 ($1,000,000 past – 6 1/2 years, $4,000,000 future – 59 years). In Hoover v. New Holland North America, Inc. (4th Dept. 2012), both the liability and damages verdicts have now been affirmed.

Plaintiff argued on appeal that $1,000,000 for past damages was inadequate and should be increased in view of the following injury facts:

  • Jessica was conscious while hanging from the post hole digger’s driveline and saw her right arm lying on the ground; she had to be cut down by her stepfather
  • daily pain and sensitivity in her stump, phantom pain that is excruciating, neck and back pain
  • significant psychic and emotional trauma, including depression
  • fractures of her left clavicle, scapula and humerus

Defendants argued on appeal that the overall $5,000,000 pain and suffering award was excessive because Jessica “enjoyed a reasonable return to everyday activities” including:

  • her return to high school within several months and graduating on time,
  • obtaining a driver’s license and driving a car,
  • being employed for four years after high school at a bank,
  • becoming a mother and raising an infant on her own, and
  • attending a local community college

In affirming the entire pain and suffering award, the appellate court rejected plaintiff’s argument that the past award was inadequate and the defendants’ argument that the entire award was excessive.

The total jury award was $8,811,587. In addition to $5,000,000 for pain and suffering damages, the jury awarded (and the appellate court affirmed) $3,811,587 for economic damages:

  • past medical expenses – $138,653
  • future medical expenses – $2,677,934
  • past loss of earnings – $45,000
  • future loss of earnings – $950,000

The future medical expenses award included $1,687,902 for prosthetic devices, their repair and maintenance. Each prosthetic arm must be replaced every three to five years and they cost $64,000 each.

Inside Information:

  • On the third day of trial, the manufacturers and the owner settled for a total of $4,625,000. Under General Obligations Law Section 15-108, the settlement will reduce the amount plaintiff receives from the overall $8,811,587 verdict.

UPDATE: On April 1, 2014, the Court of Appeals affirmed the denial of defendants’ motion for summary judgment seeking the dismissal of plaintiff’s design defect claims. New York’s highest court held that there were triable issues of fact concerning the defective design of the safety shield that were sufficient to defeat summary judgment based on substantial modification.