Kenneth Allen's $48M Verdict in Nation's Top 10
LAWYERS USA
By Sylvia Hsieh
A steelworker who was paralyzed from the waist down after falling from a ladder was awarded $48 million by an Indiana jury.
The plaintiff, 41-year-old Anthony Arciniega, worked for a steel mill where a contractor, Minteq International Inc., was hired to apply refractory, a bonding spray, to various metals.
Instead of suing the steel mill, which employed Arciniega and could not be sued under the exclusivity provision of the state workers' comp statute, plaintiff's attorney Kenneth J. Allen of Valparaiso, Ind. brought the case against the contractor.
The main allegation was that the contractor had misapplied the substance by overspraying and coating the ladder as well. When the plaintiff ascended the ladder, which was stationed about 17 feet above the ground over a platform, the refractory broke off, causing the fall.
The jury assigned 50 percent fault to the contractor, but also found that the steel mill, a non-party, was 50 percent at fault.
A key issue at trial was the steel mill's failure to install a handrail on the platform in violation of OSHA rules.
Another critical piece of evidence was videotape of improper spraying created by a defense expert. The videotape was valuable both for its contents and the sanctions that resulted from a discovery fight over its production.
OSHA RULES
The defendant tried to put the blame on the steel mill by arguing that the mill failed to install a handrail on the platform underneath the ladder, in violation of OSHA regulations.
The defense argued that the handrail would have prevented the fall.
But Allen, whose case was focused on the contractor's fault, hired a biomechanical engineer who testified that had the handrail been installed, the accident would have been even worse because the plaintiff would have hit the rail during the fall.
"He concluded that if there had been a handrail on the platform, the injury would have been significantly worse, resulting in either paralysis from the neck down or death," Allen said.
He said the jury of five women and three men responded very positively to the plaintiff, who returned to work in a wheelchair within six months of the injury in a newly-created job.
"The jury saw that as a real testament to what kind of guy he is. He has three little kids and a wife and he responded accordingly," said Allen.
VIDEOTAPE EVIDENCE
Another key piece of evidence was videotape taken by defense experts who taped the contractor applying refractory.
The tape showed that the defendant had oversprayed on other occasions.
"Their own evidence did them in. It showed they were chronically misapplying the refractory by spraying onto other things. The jury saw that, and it was pretty damning," said Allen.
But perhaps a bigger impact was the battle over the failure to produce the evidence.
During discovery, Allen argued that the videotape was taken without his knowledge and was not disclosed to him.
"It was done for the defendant, by the defendant by defense experts. It was not intended for us to see, but after a court battle we obtained production," said Allen.
The judge awarded sanctions and allowed Allen to name new experts on the eve of trial, according to John W. Patton, Jr., of Patton & Ryan in Chicago, who was hired to replace the sanctioned defense attorney.
By the time Patton stepped in as new defense counsel six weeks before trial, he already felt he had an uphill battle.
"The plaintiff had five liability experts and the defense had one. We were not in a position to rebut their opinions," said Patton.
He also complained that the state law requiring a jury to be told that an employer will not pay damages because of the workers' comp bar "puts a defendant at an extraordinary disadvantage."
But Allen said the reason the jury reached its verdict was the shifting arguments of the defendant.
"First they said the refractory wasn't their product. When we proved it was their product, they said 'We don't overspray.' Then when we proved they oversprayed on a regular basis, they argued the steel mill should have cleaned it up. That was how they defended the case," said Allen.
The case is currently on appeal on a number of issues, including whether sanctions were warranted.
Allen is also appealing whether the plaintiff is entitled to collect the full $48 million from the contractor because of how the non-party employer was named on the verdict form.
AT-A-GLANCE
Verdict: $48 million in compensatory damages
State: Indiana
Type of case: Negligence
Status: On appeal
Case name: Arciniega v. Minteq
International Inc.
Date: Dec. 11, 2008
Plaintiff's attorney: Kenneth J. Allen of Kenneth J. Allen & Associates in Valparaiso, Ind.
