Scott has produced a paper for those interested in information about the way Covid-19 has impacted aviation, including the economic, structural, social, and litigation impact of Covid-19 on the aviation industry.
You can download that paper here:
Scott has produced a paper for those interested in information about the way Covid-19 has impacted aviation, including the economic, structural, social, and litigation impact of Covid-19 on the aviation industry.
You can download that paper here:
Scott Brooksby recently co-authored the article, “What Can Be Done About Pilot Depression, Suicide, and Other Flight Crew Mental Health Issues?” in a newsletter published by the American Bar Association, Mass Torts Litigation Section on November 9, 2017.
Mental health problems are nearing epidemic levels in the
developed world. According to the Centers for Disease Control
(CDC), suicide is the tenth leading cause of death and claims over
43,000 lives per year. Not surprisingly, if it is an issue in the
mainstream, you can bet it is a problem in the cockpit. It is true
that pilot mental fitness-and its connection to human factors
analysis-has always been a critical aspect of aviation safety, but
recent events suggest it is becoming even more important to
examine ways to identify mental health problems that may affect
pilot performance and safety in the cockpit. As Jet Blue founder
and former chief executive officer David Neeleman suggested,
“nobody ever thought about having to protect the passengers from
In truth, most pilots would readily acknowledge that while the use
of medications to help mitigate the effects of mental illnesses has
been a hot button issue in aviation for some time, actual
evaluation of mental and emotional fitness in connection with
medical certification and continuing monitoring for symptoms has
not been a priority for the Federal Aviation Administration (FAA) or
flight surgeons. In addition, the reliance on self-reporting by pilots
as part of the medical certification process, as well as the
confidentiality that protects doctors from disclosure, has created a
dangerous dynamic in the cockpit that can make it difficult for
aviation authorities and commercial carriers to vet and identify
these dangers before it is too late. Add to these factors, the
compelling incentive for pilots to hide mental health issues for fear
of losing their jobs and you have little chance of ever identifying
the problem, let alone getting pilots the help they need.
This article explores these pressing issues and whether it is realistic to think that merely asking a pilot during a flight physical how he or she feels, or how is the family, or whether any issues are troubling you, etc., will trigger a response that will reveal a mental deficiency.
From Scott Brooksby’s article, “Bird Strikes and Aviation: Facts and Fault” published in the American Bar Association’s Mass Torts Practice Points on December 7, 2015:
Bird strikes are an increasing danger to commercial aviation and result in death and serious injury to passengers and crew, and soaring costs for aircraft damage.
According to Boeing, the first bird strike was recorded by the Wright Brothers in 1905. Now, aircraft-wildlife strikes are the second leading cause of aviation-related fatalities. Globally these strikes have killed over 400 people and destroyed more than 420 aircraft. In addition to birds, wildlife strikes have been reported involving horses, antelope, moose and many other mammals.
Potential Liability for Airport Operators
The USDA’s Airport Wildlife Hazards Program plays a leading role in the supervision and management of aircraft-wildlife strikes. The USDA notes that airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues. The U.S. Code of Federal Regulations requires that Part 139-certificated airports experiencing hazardous wildlife conditions as defined in 14 C.F.R. section 139.337 to conduct formal wildlife hazard assessments. The certificated airports must develop wildlife hazard management plans as part of the certification standards. Airports are required to employ professional biologists trained in wildlife-hazard management. (14 C.F.R. § 139.337 and FAA Advisory Circular 150/5200-36). Failure to comply with the regulations can give rise to liability for airport operators.
According to Boeing, the relevant wildlife-strike facts include:
1. More than 219 people have been killed as a result of bird strikes since 1988.
2. Between 1990 and 2009, bird and small and large mammal strikes have cost U.S. civil aviation $650 million per year.
3. The Air Force sustains about $333 million dollars in damage per year due to bird strikes.
4. About 5,000 bird strikes were reported by the Air Force in 2012.
5. About 9,000 bird and other wildlife strikes were reported for U.S civil aircraft in 2009.
6. The FAA has identified 482 species of birds involved in strikes from 1990-2012.
Factors Contributing to the Rise in Bird Strikes
1. The North American non-migratory Canada goose population increased from 1 million birds in 1990 to 4 million birds in 2009. Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.
2. A 12-pound Canada goose struck by an airplane moving at 150 miles per hour during takeoff generates the kinetic energy of a 1000 pound weight dropped from a height of ten feet.
3. Nesting populations of bald eagles increased from 400 pairs in 1970 to 13,000 pairs in 2010. Between 1990 and 2009, 125 bald eagle strikes were reported. The body mass of a bald eagle is 9.1 pounds for males and 11.8 pounds for females.
4. Finally, the population of European starlings is now the second most prevalent bird in America, numbering over 150 million. Often called “silver bullets,” they fly at high speed and have a body density that is 27 percent greater than gulls.
In January 2009, U.S. Airways Flight 1549 landed on the Hudson River after multiple Canada goose strikes in flight. As a result, New York City Mayor Michael Bloombergdeclared war on geese. Suzanne Goldenberg, New York Declares War on Geese to Prevent Airport Bird Strikes, The Guardian (June 12, 2009). A mayoral steering committee gave the go-ahead to the USDA to cull geese in a 450-mile area encompassing JFK, LaGuardia, and Newark airports. Other means of control include:
1. Each summer, teams of USDA goose catchers capture geese that, in the molting condition cannot fly, including offspring that are then taken to slaughterhouses and dispatched. Between 2009 and 2010, 2911 geese were killed.
2. The USDA reports that 80 percent of Canada geese are resident, and remain in place, rather than migrate. The government and airport operators strongly advocate for the culling of non-migratory birds.
3. Discouraging nesting and grazing.
4. Letting grass grow taller, planting unpalatable grasses, reducing standing rainwater, and oiling eggs to prevent hatching.
5. Firing pyrotechnics and propane cannons.
Given the rapid growth of non-migratory birds at some of the busiest airports, and the dramatic increase in flights, it may only be a matter of time before a catastrophic bird or wildlife strike will happen again, with more disastrous results than the extraordinary landing of Flight 1549 on the Hudson.
Lawyers for the manufacturing industry should pay particular attention to assisting their clients with managing burn risks. One of the under-recognized aspects of workplace injury risk has to do with the relationship between the level of technology and the potential for risk. The following is from Scott Brooksby’s article published in a manufacturing trade online magazine, Manufacturing.net, which delivers to a global community the most up-to-date news, trends and opinions shaping the manufacturing landscape–
There are few more sophisticated and complex high-heat metallurgy manufacturing industry processes — and few with less tolerance for error — than the processes involved in manufacturing components of the hot-section of an aviation gas turbine engine. This precision minimizes the risk of catastrophic aviation disasters such as uncontrolled engine failure.
Involving super-heated, liquefied metals and extremely hot smelters, furnaces, crucibles or molds, it might be assumed that hot-section manufacturing constitutes a high-risk burn environment. Actually, the danger of serious burns in any manufacturing environment often are misunderstood or underappreciated — as are the staggering human and economic costs. With a single bad burn, a worker can be scarred for life, and manufacturers or insurers may be exposed to tens of millions of dollars in worker’s compensation payments, settlements or verdicts. And no class of burns creates greater tragedy or higher financial costs than 4thdegree, full-thickness burns to the hands and face associated with super-hot metal production.
Just to illustrate, burn-center treatment of a 4th degree burn covering 20 percent of a victim’s body — a “serious large burn” — easily can exceed $750,000 for the first few months of intensive treatment at a burn center. Reconstructive surgery can continue for decades, and pain and the humiliation of disfigurement can be a life-long burden for the victim.
Precision not the only benefit of sophisticated automation
But burns in aviation hot-section parts production are relatively rare for three basic reasons. First, and principally, automated technology that delivers micron-level tolerances minimizes human error — systems that utilize computerized ovens and robots so complex that molten metals are measured to the microgram are unlikely locations for human error that leads to a burn injury.
Second, largely due to the complexity of the process and technology, the hot-section manufacturing workforce frequently is uncommonly long-tenured, highly skilled and well-educated. Last, workers are subject to disciplined safety training, and benefit from high-tech personal protective equipment — principally to reduce the risk of burns. Phenomenal technology, great training and a superior workforce all combine to mitigate the hazards of super-heated metals production.
With turbine fan blade manufacturing as a case in point, let’s review the correlation between technology sophistication, training and burn risk.
Moving down the technology ladder moves you up the burn-risk ladder
At the height of technology and its attendant safety halo are compressor, turbine disc and turbine blade manufacturing stages, with computer-controlled processes delivering incredible product quality while keeping workers safe from burns.
Highly trained technical workers oversee the automated process of powder metallurgy, in which titanium is heated to its melting point of 3,000°F and spun onto a rapidly rotating turntable, transforming the molten metal into microscopic droplets that quickly cool and form a fine metal powder. In enclosed ovens, the powder is reheated to more than 1,000°F, and pressed at 25,000 psi into a disc. All of this takes place in a sealed environment.
Turbine discs and blades, also formed through powder metallurgy, are subject to even greater stresses because of the intense heat of the nearby engine combustors.
Here we begin stepping down the technology ladder and up the risk ladder, as molten metal often is hand-poured into molds. First, copies of the blades are formed by pouring wax into metal molds. Once set, the wax shape is removed and immersed in a super-heated ceramic slurry bath, forming a ceramic coating. Each cluster of shapes is heated to harden the ceramic and melt the wax, and molten metal is poured into the hollow left by the melted wax.
Depending on the material being formed, turbine blades are subject to temperatures of from 1,000 to 2,500°F, so they are coated in ceramic thermal barrier coatings. The ceramic must be melted, and the blades dipped by workers into the molten ceramic, again at temperatures far exceeding 1,000°F.
While major portions of the fan blade stages take place in compartments, production of parts such as combustion chambers and compressor blades revert back to traditional casting methods, with workers directly exposed to liquefied titanium and metal alloys being poured into molds, which often are manually handled.
Burn risk skyrockets in secondary processes
It’s axiomatic to say that burn risk escalates as a production line transitions from fully automated to a blend of automated and manual processes, to strictly manual processes. Less well-recognized is the reality that for virtually all metals manufacturers, the least automated, dirtiest and most dangerous aspects of production are secondary processes — such as mold cleaning in aviation engine hot-section manufacturing. Unfortunately, the combination of “first assignment” areas for new, contract or temporary workers and lack of automation can lead to tragic result.
In hot-section cleaning departments, parts are dipped in large, open tanks of high-temperature caustic chemicals such as sodium hydroxide and potassium hydroxide to remove most of the casting shell. The chemicals themselves pose a potential danger, and the threat of burns escalates due to combination of heat and the mechanical nature of the work — which industry to date hasn’t yet found a way to automate.
Further, in this setting, workers periodically climb into empty tanks to undertake a potentially perilous task known as “tank digging.” It’s been documented that in some cases, workers with less than 90 days on the job have been assigned a supervisory role in this processes.
A caution regarding temporary workers where burns may occur
Although as noted, aviation component manufacturing generally employs a highly skilled workforce, but even here, the intersection of low technology and temporary or less skilled workers is a dangerous one. First, new or inexperienced workers frequently aren’t fully aware of risks and dangers involved in a job, and secondly, because of legal and financial ramifications in the event of a burn injury to a contract worker.
This is especially critical since, in most states, worker’s compensation is the worker’s sole remedy against the employer. Worker’s compensation does not typically provide for non-economic damages (pain and suffering), which dramatically spike the value of litigated settlements or verdicts in burn cases. However, other classes of workers — notably temporary and other contract workers — may be able to sue for non-economic damages resulting in verdicts or settlements that can cripple a company.
Therefore, burned workers will look for employer targets who do not ensure protections typically afforded through worker’s compensation or indemnity across all classes of workers.
Decrease risk to the business as well as to workers
In addition to investing deeply in training and the safest manufacturing equipment, every manufacturer first needs to be aware of legal and financial ramifications in the event of a burn injury to a contract worker. Employers should exercise caution in the placement of temporary workers, and closely review contracts with temporary worker service providers to ensure that iron-clad provisions are in place to contractually obligate service providers to provide worker’s compensation for the temporary employee. Also, manufacturers also should insist on indemnity provisions that protect against any claims brought by the temporary worker for injury.
In many areas, the aviation hot section component manufacturing industry represents a pinnacle of safety training and manufacturing technology. But a lesson can be learned in recognizing the increased threat of burn risk at stages where the technology footprint is light, and the workers are less trained and less invested.
Catastrophic injury cases can be particularly difficult to defend. Burn injury cases are difficult to defend due to the severe, painful, and grotesque nature of the injury. With relatively few exceptions, there is no such thing as a short stay in a regional burn center. Such centers do not treat sunburns or minor cooking accidents. Based on our experience when defending serious burn cases, it is not uncommon for stays in burn centers to last weeks, months, or even in excess of a year. Stays of many months or exceeding a year typically cost well into the seven figures for past treatment. Such aftercare means that most burn cases are high-exposure cases that require serious evaluation and preparation.
Treatment After Discharge From the Burn Center
Serious burns are not “healed” at the point of discharge from the burn center. Release from the burn center in serious burn cases typically signals the beginning of a long series of follow up treatment visits and possibly scar revisions, as well as additional grafting or other procedures. Aftercare treatment may last months, years, or even decades in the most severe cases. Discharge typically begins with admission to a step-down facility. This is typically a residential facility affiliated with, and in close proximity to, the burn center. The length of stay in the step-down facility varies, but usually lasts about thirty days.
Both at the step-down facility and after return to home care, the victim of a serious burn will begin a series of follow up visits with the burn physician. The most common aftercare is a continuation of excision and grafting, both to those areas where grafts have been rejected or did not “take” sufficiently, or where multiple grafts are required for a structural or functional purpose. Depending on the nature of the necessary revision procedures and the skill required, this can be a complicating factor when the burn victim lives far from a regional burn center. Extensive travel time may be required and often the plaintiff will seek monetary damages for such travel, or argue that, by definition, it constitutes an impairment of earning capacity due to employment interruption.
Another common aftercare procedure is tissue expansion. With tissue expansion, a balloon expander is inserted under the skin in the area in need of repair. Over time, the balloon will gradually be filled with saline solution, slowly causing the skin to stretch and grow. Once enough extra skin has been grown, it is then used to correct or reconstruct a damaged body part. This is common for breast reconstruction and parts of the upper torso.
Typically burn surgeons and plastic surgeons will take an inventory approach to necessary reconstructive and plastic procedures. They will triage the most problematic areas, starting with the face, head and extremities, if affected, and work through a graded inventory of affected areas. This could go on for five-plus years. With many patients, the psychological aspect of treatment becomes the most difficult. It feels as though they are constantly having surgeries, even if the surgeries are, in fact, intermittent.
In burn cases, the major and minor reconstructive surgeries will eventually reach the point where scar repair has no functional relevance and is cosmetic only. However, this is more complicated with major burns because total body or near total body burns are tied to functional needs, and this makes the query about whether a given procedure will produce worthwhile, if any, additional cosmetic benefits more difficult. The total body surface area that is burned, particularly if it includes the face and hands, may drive some conflict in the debate regarding whether further procedures add function or are merely cosmetic and whether further cosmetic benefit can even be achieved.
Because Burn Cases Are Generally High-Exposure Cases, it is Important to Hire the Best Experts and Consider All Variables When Assessing Damages.
Some burn injuries, such as deeply burned hands, cannot ever be fully restored. Furthermore, some burn reconstructive surgeries go on for many years, even as many as thirty-plus years. It is imperative in the defense of burn cases to hire the best possible expert. Because a significant portion of the potential exposure lies in the intensive nature and long arc of the aftercare, the expert can be helpful in preparation for cross-examination of the plaintiff’s expert on whether some of the allegedly needed procedures will provide any functional, or even any significant cosmetic, benefit that would justify both the cost and the risks that are perennially associated with grafting, such as rejection, infection and additional scarring.
When a reasonable settlement is possible, it should be seriously considered, even when there appear to be good defenses. Those defenses can be useful negotiation points during a settlement. Variables in burn centers, surgical treatment, aftercare, the nature of the burn, and the presentation of the plaintiff all make any hard and fast rules for case assessment ineffective. But manufacturers and insurers should keep in mind that burns, unlike most other injuries, especially to children, have the potential to create unpredictable, and possibly soaring verdicts.
Most experienced defense lawyers know that the variables in burn injury cases prevent anything resembling a guarantee of a good result. The following variables can affect the outcome of a case, including the potential financial exposure that a defendant or its insurer or worker’s compensation carrier may face:
– the different types of skin grafts and skin graft surgical procedures commonly involved in burn cases;
– whether, in high total body surface area (tbsa) burns, complete excision and grafting can be completed in a single principal procedure;
– the treatment technique, surgical technique and treatment philosophy of the physician; and
– the relative size of the burn center, as larger centers tend to be able to perform certain procedures–not because of greater skill, but because of the size and number of surgical teams necessary.
Skin Graft Classification and Skin Graft Surgical Procedures
In burn injury cases, surgical removal (excision or debridement) of the damaged skin is followed by grafting. The grafting is designed to reduce the course of hospital treatment and improve function and cosmetic appearance. There are typically two types of skin grafts–mesh grafts and sheet grafts. A less-common, third type of graft is a composite graft.
Mesh grafting is known as partial-thickness grafting, or split-thickness grafting. With mesh grafting, a thin layer of skin is removed from a healthy part of the body, known as the donor site. It is processed through a mesher, which makes apertures into the graft. The graft then becomes mesh-like, allowing it to expand approximately nine times its original size. Such grafts are used to cover large areas and the rate of auto-rejection is lower. Harvesting of these grafts from the same site can occur again after as little as six weeks. The surrounding skin requires dressings and the donor site heals by reepithelialization.
Using a dermatome, the surgeon usually produces a split-thickness graft which is carefully spread on the bare area to be covered. It is held in place by a few small stiches or surgical staples. The graft is initially nourished by a process called plasmatic imbibition in which the graft drinks plasma. New blood vessels begin growing from the recipient area and into the transplanted skin within 36 hours in what is called capillary inosculation. To prevent accumulation of fluid, the graft is frequently meshed by making lengthwise rows of short interrupted cuts, each a few millimeters long, with each row offset to prevent tearing. This allows the graft to stretch and more closely approximate the contours of the affected area.
In the alternative, a sheet graft, which is a full-thickness graft, involves pitching and cutting away skin from the donor section. Sheet grafts consist of the epidermis and entire thickness of the dermis. Sheet grafts must be used for the face, head and hands because contraction must be minimized. If sheet grafting is necessary but the donor sites are insufficient, the outcome is likely to be less satisfactory, and the financial exposure in such cases will be higher.
With sheet grafting, the donor site is either sutured closed directly or covered by a split-thickness graft. Sheet grafts are more risky in terms of rejection, yet counter-intuitively leave a scar only on the donor section. Sheet grafts also heal more quickly and are less painful than partial-thickness grafting.
Sheet grafting is usually difficult in severe aviation or manufacturing burns because those involve high-percentage tbsa burns and donor sites are therefore limited.
The third type of graft, a composite graft, is a small graft containing skin and underlying cartilage or other tissue. Donor sites would include the ears and other cartilage to reconstruct, e.g., nasal rim burns.
In High TBSA Burns, When Immediate, Complete Excision and Grafting is Completed in a Single Procedure, Damages Amounts May Be Lower.
In cases involving clearly severe, high tbsa burns, whether full or partial thickness, immediate, complete excision and grafting is usually indicated. If immediate excision and grafting is complete–that is, done in a single procedure–a much larger surface area surgery can be completed with less blood loss. This minimizes transfusion needs and dangers and also speeds physiological restoration.
Furthermore, an immediate, complete excision and grafting procedure can often allow use of good skin for grafting that would otherwise need to be excised. If the procedure is not done immediately, less skin may be available for grafting. In other words, skin that otherwise may have been healthy and usable when the plaintiff was first admitted to the hospital may die if the procedure is not done immediately, particularly if that skin is close to the burn site.
Immediate, complete excision and grafting also cuts down on the number of procedures and allows important vascular redevelopment to begin occurring sooner and supplying the graft locations with blood flow, which is essential to healing.
The Treatment Technique, Surgical Technique and Treatment Philosophy of the Physician Can Be Outcome-Determinative
The simple fact is that some surgeons are more skilled than others, so the outcome may be better or worse depending on the skill of the physician.
There are also some advances in burn surgery that particular physicians are able to employ. For example, in the most serious burn cases, grafts may be taken from other animals. Such grafts are known as heterografts and, by design, they serve as temporary dressings that the body will unquestionably reject within days to a few weeks. They are used in severe cases to reduce bacterial concentration of an open wound and reduce fluid loss.
Additionally, some surgeons are able to use cell cultured epithelial autograft (CEA) procedures, which involve removal of skin cells from a patient and the growth of new skin cell sheets in a lab. Although the new sheets will not be rejected, they are typically only a few cells thick and do not stand up to trauma. As a result, many such grafts do not take and the procedure must be repeated or an alternate procedure employed.
Furthermore, some physicians prefer to do more sheet grafting versus mesh grafting. The physicians who prefer mesh grafting like it because they can cover much larger areas in a shorter period of time. Conversely however, mesh grafting requires more revision surgeries, more of a risk that the grafts don’t take, and more contraction, which is disfiguring and requires further surgery.
Different groups of surgeons have their own philosophies and cultural preferences. In Portland, Oregon, for example, there is one group of approximately five, highly-skilled burn surgeons who staff the Oregon Burn Center at Emanuel Hospital. Due to the relatively small size of the burn center, they tend to wait four to seven days before conducting major graft procedures so that they can have a better assessment of the full extent of the injury.
The Relative Size of the Burn Center Can Be Outcome-Determinative
Larger burn centers, such as the ones at UC Davis or Harborview in Seattle, do not necessarily provide better treatment, but they are typically capable of complete excision and grafting at admission when there is a high percentage of the total body that sustains full-thickness burns or a combination of full-thickness and lesser degree burns. This is a function of burn center size, not the skill of the physicians. A full excision and grafting procedure is lengthy and generally requires two full surgical teams and at least two attending physicians and two assistant surgeons. This type of procedure is generally not possible at relatively smaller burn centers such as the Oregon Burn Center.
Using Variables in Burn Cases to Assess Case Value and Adequately Prepare
The variables discussed above vary from case to case. It is important to assess each one when valuing a burn injury case in order to determine the defendant’s likely exposure and prepare adequately for productive settlement discussions and, if absolutely necessary, trial.
Burns Are Significant Injuries and Can Lead to Some of the Highest Jury Verdicts
Olson Brooksby appreciates the potential high-exposure value of burn injury cases. Scott Brooksby has significant experience in serious, total body surface area (tbsa) burn injury and wrongful death cases. Our lawyers understand the delicate nature of large burn injury cases and work to minimize exposure to our clients.
Defendants potentially subject to burn injuries should employ best safety practices and make every attempt to avoid such injuries. Burns are one of the most serious injuries in personal injury cases. They may be the result of chemical fire or exposure, explosions, paints, solvents, or conventional fire. Sometimes burns are the result of contact with hot equipment or other product liability related events. The defense of serious burn injuries, including those related to aviation, product liability and heavy manufacturing is a large part of the defense practice of Olson Brooksby. A bad burn case in an aviation or heavy manufacturing accident, or as the result of a product liability defect can easily present high financial exposure to manufacturers and/or insurers. Settlement exposure can climb into the millions or tens of millions, with verdicts at least as high.
Even when there appears to be a strong defense, defendants should not underestimate the overwhelming sympathy a jury will feel when it sees a burn victim, particularly with serious facial burns or burns to the extremities. A good plaintiff’s lawyer will ask the jury to consider things like the profoundly disfiguring effects of a bad facial burn and the pain that everyday exposure to sunshine will cause its victim for life, or the lifelong gawking stares it will draw.
Similarly tragic are severe burns to the hands, which cannot be restored to even near full function or pre-burn aesthetics and result in pain every time the victim is touched. When liability is clear, burn cases should be settled because, unlike other personal injury cases, deformities caused by burns can incense juries to the point where they cannot put their emotions aside. The result can be verdicts in the millions or tens of millions, including punitive damages (particularly if children are involved or there is perceived recklessness). Although the amount of burn verdicts used to depend on the region of the country where the case originated, such verdicts are now generally high in every jurisdiction.
If the burn injury case must be tried, it must be done with great sympathy for the victim and careful attention to the medical aspects of the case, including future treatment, which may last decades and cost into the six or seven figures.
When trying a burn injury case, it is important to know where the injury occurred. If a plaintiff has to be air lifted to a burn center, that can radically change the extent of the injury. Similarly, it is important to know the details of the burn center where the plaintiff was treated because that can also change the extent of the injury and thus affect the jury verdict amount.
The Location of the Accident Can Change the Extent of the Injury and the Jury Verdict
In those industries where serious conventional burns are common, such as aviation disasters or steel or metal manufacturing, “serious” can arbitrarily be defined as full-thickness burns over 20% or more of the tbsa. The location of a burn center and the length of time to transport the victim to the burn center can be outcome-determinative. This is also particularly true where babies and children or those over sixty-five are the victims, or where there are serious burns to the face, head, extremities, or internal organs.
Manufacturers and insurers obviously do not choose where burn centers are located. After an accident, first responders will obviously make needed decisions about transport. Most heavy manufacturing, including that of aviation hot section components, is done near large metropolitan areas that typically have at least one burn center. Perhaps some of the greatest danger lies in cases in remote areas where individuals are subject to burns from allegedly defective products. For example, a person camping in a remote area of the Western United States who is badly burned by kerosene at a remote campsite may not be able to reach a burn center for hours. There may be no cellular phone service and a helicopter ambulance may have to be dispatched from hundreds of miles away.
Depending on the severity and tbsa burned, the size and related capabilities of the burn center will have a direct impact on the plaintiff’s recovery, and consequently, the ultimate exposure to the manufacturer and/or insurer in any settlement or verdict.
All Burn Centers are Not the Same–They May Have Varying Treatment Philosophies, Training and Capabilities
The size of the burn center can also be outcome-determinative because smaller centers, such as the Oregon Burn Center at Emanuel Hospital, are generally not large enough to perform a full excision and grafting in high tbsa burn cases. A full excision and grafting is where they do all of the procedures at once instead of one at a time. Some burn physicians believe that, depending on the case, better outcomes are achieved through full excision and grafting in high tbsa burn cases.
There are approximately 45 regional burn centers in the United States. Verification of burn centers is a joint program administered in the form of a rigorous review of the applicant centers by the American Burn Association (ABA) and the American College of Surgeons (ACS). Many states do not have a regional burn center and most states have only one or two. California has the most, with seven. Most burn centers are run by a single group or an extremely limited number of groups of burn surgeons who practice at the facility.
Unlike hospitals, burn centers do not typically extend general privileges to physicians. Most burn surgeons have been trained as general surgeons, and then have gone on to receive additional specialized training in burns. Along the population corridor running down I-5 between Seattle and Davis, California there are three verified regional burn centers, one each in Seattle (Harborview), Portland (The Oregon Burn Center at Emanuel Hospital), and The UC Davis Regional Burn Center.
Training and available resources vary from center to center. Burn centers also tend to have more pronounced treatment philosophies and cultures because they are staffed by relatively few surgeons who generally practice in the same group or just a few groups. However, although burn center practice varies, it is imperative that those who are seriously burned reach a regional burn center as soon as possible because specialized treatment is inarguably outcome-determinative
The mechanics of injury, lots of fire, accelerant, and contact with temperatures in excess of 1,000 degrees are factors that are considered when determining whether burns are graftable from point of admission. In any serious burn case, most intermediate facilities such as a conventional hospitals will seek to transfer a seriously burned patient, almost always by air, to a regional burn center as soon as stabilization occurs.
With the incredible advances in safety equipment in and standards, one would think that punch press amputations would be a thing of the past. However, they still occur today, and manufacturers with press operations need to be vigilant both about their safety equipment and practices, as well as their record-keeping
Extremely large metal punch presses can range in strength from about ten tons to 50,000 tons. Larger presses that exceed something in the neighborhood of 150 tons can cost into the seven figures and present a tremendous capital investment burden, particularly for the small or mid-size metal component manufacturer. Because of the incredibly high cost of this equipment, and because of the long life of the equipment and the possibility of retrofitting with modern safety devices, many ultra-heavy-duty punch presses are still in use today. It is important that older equipment both be retrofitted with modern safety devices that comport with industry standards and that records of safety modifications or changes be maintained.
Scott Brooksby recently defended a mid-sized manufacturer that operated a hydraulic punch press that had been manufactured in approximately 1928 and was acquired by a client in approximately 1979. After fifty-one years of continuous use, the punch press was still in excellent operating condition. One day, for reasons that are not completely clear, the press descended and partially amputated the right hand of the manufacturer’s employee. In the nearly 30 years before this accident, there had never been a single accident reported on the punch press.
These situations are often complicated by the number of, and nature of, control mechanisms, which can include foot pedals, hand pedals, electronic switches, buttons, or pedals that provide for slow “inch mode” movement, etc. Often different operators will prefer different methods of use. In this case, the primary operator was stationed at the front of the machine and would activate the press using an inch mode to set dies and then produce product more quickly as the operator at the rear removed and inserted the die in a continuous cyclical fashion, while the front operator operated the machine with a series of hand and foot pedals.
Although the press was originally built some eighty years before the accident, the manufacturer had diligently retrofitted the press with up-to-date safety modification, including 360-degree light curtains. A commonly relied on safety device, light curtains are designed to stop descention of the press in the event that a hand or any object penetrated the light curtain. In this case, the light curtains were installed both on the front and rear. The light curtain appeared to have been interrupted at the time of the accident. The precise cause of the accident will likely never be known.
After the press was acquired by the manufacturer, some add-ons and wiring and safety modifications were made. The precise timing of the modifications was unclear. The press was retrofitted with light curtains which were designed to prevent inch movement when the light curtains were broken. The front and rear light curtains appear to have been installed at different times. At some point prior to the accident, the light curtains were replaced with updated versions. As part of routine maintenance procedures, the press was fitted with a new brake in 2004 or 2005. The new brake was not a safety add-on. The brakes on the machine were tested immediately after the accident and found in good order.
When the State Occupational Health and Safety Administration investigated, the accident maintenance records could not be located.
There are two important things to learn from this case:
1. Virtually every steel company, metal company, or manufacturer of component parts using these materials will have old (even decades-old) equipment that is working perfectly well and is perfectly safe by modern standards through the addition of retrofitted safety devices. However, it is critical that such retrofitting be documented and that the documents be retained indefinitely, or maintained in strict compliance with a formal document destruction policy.
2. In most states, the OSHA agency conducting the investigation will want to interview, and will be entitled by statute or regulation to interview, employees involved in the workplace accident outside the presence of counsel, even if counsel has been retained and requested to be present. This warrants the cost and discipline associated with diligent training. Management should consider including a training module so that workers who are interviewed outside the presence of counsel focus only on speaking about what they saw, what they said, or what they heard others say, all limited to a first-hand perspective.
Despite the recent domestic economic downturn, global demand for steel, other metals and heavy equipment continues to increase in emerging markets and elsewhere. With the increasing demand for production, a potential source of personal injury that is often overlooked is quality control testing. Manufacturers face pressures to produce, poor communication with and between workers, and what can sometimes be decades-old equipment. This equipment has usually been continuously retrofitted and appears to function perfectly well, but that is not always the case and serious injury can occur during secondary procedures.
For example, Scott Brooksby defended a steel mill against the claim of a temporary worker who was subject to injury when he was struck in the head by a tail sample cut during sample burning operations. During steel production, tail samples are typically cut from sheet steel. At temperatures approaching 1300 degrees, the tails, which vary in size, are routed on a conveyor system into a sample burning room so that samples can be taken for routing to the laboratory to conduct tensile, radiographic and other quality control tests. The conveyor system is a series of metal rollers controlled by a series of steel gates that regulate the tail samples so that they do not collide and cartwheel into the air or fall from the conveyor, posing a danger to workers.
In Scott Brooksby’s case, a steel tail approximately 8 feet long and 1.5 inches thick was cut from a sheet in the main production roller room. At approximately 1350 degrees Fahrenheit, the sample, which approached 500 pounds, was routed into the sample burner room. Sample burning and many other quality control processes may take place in smaller rooms adjacent to the main production halls. The sample tail is diverted from the main hall after being cut from sheet steel via a steel roller conveyor system where it would pass through a series of gates controlled either electronically or by a set of foot or hand pedals. By the time the eight foot sample reaches the penultimate steel gate it has cooled to approximately 1,000 degrees. Theoretically, after passage through the final gate, the section is cut into smaller lengths, approximately 18-21 inches long, which can be used to stretch and test tensile strength or other quality control issues.
On this particular day, the final gate, at the sample burner itself (which is a laser torch used to cut the 18-21 inch tails), jammed shut just as the penultimate gate opened, allowing the eight-foot section to roll down the conveyor. The section collided with the sample still clutched by the final sample burner gate and cartwheeled into the air, striking one of the two operators in the head and causing injury before falling and smashing the electronic control system. The injured worker’s co-worker was able to deactivate further sample conveyance through use of a retrofitted electronic emergency estop. The steel mill processed approximately 30,000 samples per year and the age of the conveyor system was unknown, but believed to be in excess of 40 years old.
Such cases can be important reminders that the original testing equipment may function perfectly well, but may be retrofitted with any number of safety devices. It is critical that the documentation, if available on older machinery, be preserved and that any maintenance records, including the addition of such safety features as light curtains (which did not exist at the time older, but still functional equipment was manufactured). If a steel or metal mill, foundry, or component manufacturer is operating older equipment, it may be prudent to do a safety engineering study on machinery such as sample burners that exist in virtually every steel mill to determine whether retrofitting available safety devices is an option. For example, with the conventional sample burning conveyor system, it may be that the equipment is custom designed and custom safety add-ons such as horizontal spacers can be welded or bolted across the top of the conveyor at sufficient intervals so that the potential for a sample tail to cart wheel off the conveyor becomes impossible because any vertical force is arrested inches above the conveyor rollers.
If manufacturers have questions about the adequacy of the retrofitting of safety devices on older equipment, they should consider contacting the workplace safety regulatory agency in their state. In some states, OSHA will work with companies and may even provide free safety audits during which the party requesting the audit is granted a period of immunity to correct safety violations that are discovered. Manufacturers should check with their state safety agencies to determine whether such programs are available and should be sure to determine whether immunity from citation is provided in exchange for the voluntary request for inspection.
The additional safety precautions are particularly important in quality control test facilities such as the sample burning room where often less-experienced workers, or temporary workers who may not be sufficiently trained or conscious of the dangers, begin work.
Recall also that any such serious injury must generally be reported to OSHA immediately and certainly within 24 hours. In such cases OSHA investigators may also appear at the premises unannounced and, in most states, there is no right to have counsel present when OSHA is conducting its initial interviews with employees, so management should consider a plan for unplanned requests for interviews from safety investigators and ensure that employees are instructed in advance to focus on only what they actually saw, heard, or said during such interviews.