Permanent Damage to the Dominant Arm
WRSH partner Jason Rubin secured a settlement of $2,500,000.00 on behalf of a 33 year old man who was injured as a result of a defective inflatable tube towed behind a boat. As a result of the products defect the plaintiff sustained a severe brachial plexus injury which rendered his dominant arm severely injured.
The plaintiff sustained severe injuries while using a product known as a Wego Kite Tube, an inflatable tube towed behind a boat that was designed to become airborne and sustain flight. Plaintiff purchased the product shortly after it went on the market. While he was riding on the Wego for the first time, it suddenly rose approximately 20 feet in the air, became unstable, rotated to the right and crashed violently into the water, permanently paralyzing his dominant arm.
Within weeks of the plaintiff's injury, the Kite Tube was recalled by the manufacturer, in cooperation with the Consumer Product Safety Commission, because of multiple serious injuries associated with use of the product.
WRSH commenced an action against the manufacturer of the Wego, the retailer that sold the Wego to plaintiff, as well as two distributors who sold Wegos to the retailer. We claimed that the product was defective because there was no way to effectively to control its height, it was unstable, and had a tendency to drop suddenly. The manufacturer filed for bankruptcy and the case proceeded against the retailer and two distributors.
The case raised some interesting legal issues inasmuch as none of the parties were able to identify which distributor supplied the specific Wego sold to plaintiff. The distributors both moved to dismiss plaintiff's claims, each arguing that there was no proof that it was the distributor of plaintiff's Wego. In opposition, plaintiff argued that the theory of "alternative liability" was applicable, that both distributors were "jointly and severally liable" to plaintiff and that the burden of proof shifted to the distributors to demonstrate that they did not supply plaintiff's Wego to the retailer. The Supreme Court denied the distributors' motion to dismiss and held that alternative liability did, in fact, apply. This decision was affirmed on appeal.
Jason was able to obtain this substantial recovery for plaintiff during jury selection despite several viable defenses. Specifically, plaintiff admittedly used a longer tow rope than was recommended by the user's manual. There was evidence that the boat driver was operating the boat at a speed greater than what was recommended by the user's manual. Further, the defense would have argued that, by the very nature of the Kite Tubing, plaintiff assumed the risk of injury in using the product.