Marache v. New Palace Painters Supply Co., Inc., No. 24470/06 (N.Y., Bronx Co. Sup. Dec. 5, 2011).
Victor Marache, an employee of a building management company, was assisting in a project to refinish a hardwood floor in a New York City apartment. The final step involved applying a lacquer sealer, followed by a polyurethane topcoat. After applying the sealer, the workers waited about an hour for it to air-dry. When they began applying the polyurethane, an electrical spark or other source ignited vapors from the sealer, and a flashback explosion occurred.
Marache, 38, suffered second- and third-degree burns over more than 30 percent of his body, including his head, face, abdomen, and legs. He was hospitalized for about four months and required inpatient rehabilitation for another seven months. He underwent multiple skin debridement procedures, as well as skin-graft procedures in which skin was harvested from his torso and thigh and grafted onto his head and face. While hospitalized, he developed heterotopic ossifications—abnormal bone formations—in his left hip and right, dominant arm at the elbow. He underwent surgery to remove the bone formations, which grew back and required additional surgical removal. He also developed a Curling’s ulcer—an ulcer of the small intestine that is a complication of severe burns—and required removal of about 12 inches of his small intestine. His past medical expenses totaled about $1.26 million, and his future medical expenses are estimated at $1.5 million.
Marache now suffers from significant facial scarring and sensitivity to heat and cold over the burned areas. He also suffers from a reduced range of motion in his elbow and hip. His injuries have prevented him from returning to manual labor, and his limited education and English-language skills have made it difficult for him to find other work. His past lost earnings were about $107,200, and his future lost earning capacity is estimated at about $328,600.
The label on the sealer container did not identify the manufacturer. Therefore, Marache sued the distributor and retailer. After discovering the name of the manufacturer—Akzo Nobel Coatings, Inc.—he filed a separate lawsuit against that company. Akzo Nobel removed the case to federal court.
An investigation of similar lawsuits revealed that design defect theories alleging that the sealer was inherently dangerous were not succeeding because the plaintiffs were not able to prove that there was an alternative feasible design. Counsel thus chose to focus on a failure-to-warn theory.
In both lawsuits, the plaintiff alleged that the product lacked appropriate, OSHA-compliant warnings necessary to foreseeable users. He contended that the warnings failed to advise of the need for specialized ventilation equipment, including a mechanical, shock-proof fan to remove fumes. In addition, the plaintiff’s expert opined that the warnings on the sealer’s 55-gallon drums failed to (1) alert consumers that indoor use of the product was prohibited in New York City; (2) connect the need for “adequate ventilation” to the risk of fire; (3) recommend use of equipment that could have detected the emission of flammable vapors; and (4) instruct on how to properly ventilate and warn of the need to turn off gas valves, electric circuit breakers, and appliances. Evidence showed that the lacquer had a flashpoint of -4 degrees Fahrenheit, and New York City law prohibits indoor use of substances with a flashpoint of less than 80 degrees Fahrenheit.
The plaintiffs settled with the manufacturer in the federal suit for $4 million. Marache v. Akzo Nobel Coatings, Inc., No. 1:08-cv-11049 (S.D.N.Y. Mar. 2, 2011).
In the state law action, the retailer and distributor argued that electrical charges from a nearby refrigerator had ignited the vapors. They impleaded Marache’s employer, alleging that it was aware of the fire risk and was negligent in failing to deactivate the refrigerator. They also argued that the employer was negligent in failing to properly supervise Marache.
The jury allocated fault at 60 percent to the retailer and 40 percent to the distributor. It awarded about $15.2 million, including $12 million for past and future pain and suffering, $2.76 million for past and future medical expenses, and about $435,800 in past and future lost earnings.
The parties subsequently settled for the defendants’ policy limits of about $7 million.
The workers’ compensation carrier waived about $335,000 of an $800,000 lien.
The plaintiff’s experts were Kenneth Laughery, human factors, Houston; Burton Davidson, chemical engineering, New Brunswick, N.J.; Henry Spinelli, plastic/ reconstructive surgery, New York City; and Edward Rachlin, orthopedic surgery, Watchung, N.J.
The distributor and retailer’s expert witnesses in this case included Jane Welch, labels and warnings, San Antonio, Texas; Harold Zeliger, chemistry, West Charlton, N.J.; Christopher Wood, cause and origin, Worcester, Mass.; and Paul Striker, plastic/reconstructive surgery, New York City.
Anthony P. Gentile,
William Anthony Gentile, and
David M. Godosky, all of New York City.