August 8, 2017, PLLR E-Newsletter

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Shoe manufacturer’s failure to remove tack leads to worker’s toe amputation

hand hammering a nail

William Mack, an insulin-dependent diabetic, worked as a structure maintainer, and his employer provided specialized safety shoes known as Lehigh Safety Shoes. After wearing the shoes for two days, Mack, 54, discovered a small wound on the bottom of the second toe on his left foot. Because of preexisting diabetic neuropathy, he had not felt the wound. He and his supervisor later discovered a tack sticking up deep inside the left shoe.
 

The day after the incident, Mack’s podiatrist prescribed an antibiotic, but Mack’s condition deteriorated, and he was hospitalized and placed on intravenous antibiotics. He ultimately developed gangrene, necessitating amputation of the toe and a portion of the second metatarsal. Mack now has an impaired gait that resulted in the development of chronic lower back pain. He also has severe neuropathic pain in his left foot. Workers’ compensation paid his medical expenses, resulting in a lien of $135,000. After a statutory reduction, his remaining obligation is $89,000.

Mack’s injuries made it impossible for him to continue in his job. He retired on a fully funded pension.

Mack sued the manufacturer of the shoe, Lehigh Outfitters, LLC, and Lehigh’s parent company, alleging defective manufacture, breach of implied warranty, and negligent failure to inspect the shoe. The plaintiff contended that the tack in question was inserted in the normal course of the assembly process but that it was supposed to have been removed after the manufacturing process was completed.

After significant discovery, Lehigh admitted liability, and the case proceeded on damages. The defendants argued that the plaintiff was exaggerating the extent of his altered gait and the severity of his back pain, and that his back pain resulted from a preexisting degenerative spinal condition.

The defendants’ expert podiatrist also claimed that the plaintiff’s neuropathy was the result of alcohol abuse but later reportedly admitted that there was no evidence of such abuse.

The parties settled before trial for $1 million, paid by the defendants’ insurer.

Citation: Mack v. Lehigh Outfitters, LLC, No. 1:15-cv-00722 (E.D.N.Y. Apr. 7, 2017).

Plaintiff counsel: AAJ members David B. Golomb and Frank Longo, both of New York City.

Plaintiff experts: Ranga Krishna, neurology, New York City; and Lawrence Horl, podiatry, Rockville Centre, N.Y.

Defense experts: Jeffrey Spivak, orthopedic surgery, New York City; and Russell Caprioli, podiatry, Lake Success, N.Y.