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GEK Attorneys Win $2.5 Million Jury Verdict in Product Liability Case Involving a Nail Gun

Freedom. A powerful concept that is open to many interpretations.  Personal Injury attorneys Roger Gordon and Vincent Vallin Bennett were acutely aware of this recently when they fought successfully for a client in a products liability case. In fact, the attorneys’ $2.5 million jury verdict, one of the largest in the nation for a nail gun case, hinged, in part, on the notion of freedom.

Gordon and Bennett, experienced trial lawyers from the law firm of Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP, had a true ally in this case—their client, Mr. Martin Oliver, a journeyman carpenter with 40 years of experience. A distant relative of Geronimo and a deeply spiritual man, Mr. Oliver would arrive at his work site early and use sage to cleanse his work tools, a practice known as smudging, hoping it would keep him safe.

Unfortunately, those efforts were for naught one day when Mr. Oliver was installing skylight curbs on the roof of a building. He was using a Hitachi pneumatic nail gun (Model NR83A), which suddenly and forcefully recoiled, causing the nose of the nail gun to turn or rotate toward his face, hitting him on the upper lip, causing the nose of the nail gun to depress and fire a nail into his head and strike his brain.

Not realizing that a nail had discharged into his head, he immediately went to the emergency room complaining of a split lip, which was sutured, and he was discharged home. It wasn’t until two weeks later when, after experiencing dizziness and headaches so intense that they brought him to his knees, he was examined again, and an X-ray revealed that a nail had lodged into his head, with its point penetrating his brain.

“The model of gun Mr. Oliver was using was defective,” explains Gordon. “ It had a contact trip mechanism, which allows a nail to be fired when the nose of the nail gun is in contact with a surface and the trigger is pulled, regardless of the order in which those events occur. The fact that Hitachi’s gun didn’t have a sequential trip mechanism, which allows a nail to be fired only if the trigger is pulled after the gun’s nose contacts a surface, constituted a design defect.

“In California, a product is defective in design if the benefits of that design do not outweigh the risks of danger inherent in that design. In this case, Hitachi knew of this particular nail gun model’s dangerously violent rebound upon being fired, as well as the inadvertent firing of a nail [the contact trip mechanism]. Despite this knowledge, Hitachi did nothing to minimize or eliminate this defect.”

Hitachi took its disregard for human safety a step further by intentionally omitting any reference to the nail gun’s potential for dangerously violent rebounds and the risk of inadvertently firing a nail from the later editions of the instruction manual for the NR83A nail gun.

“Mr. Oliver was a hardworking, decent man, who felt 10 feet tall when he could put in a good day’s work,” says Bennett. “He was a strong, vibrant person who felt proud to be able to put food on the table for his family. His ability to work and support his family is what defined him and gave him a sense of dignity.  He can no longer do that, and the jury understood this. ”

Mr. Oliver continues to experience significant headaches, imbalance, dizziness and cognition difficulties, including impaired memory. He also experiences extreme fatigue with intermittent numbness and tingling of his limbs. He is permanently disabled from the injuries he sustained as a result of the accident.

“Under direct examination, I asked Mr. Oliver if he was angry when he realized that he was injured because the gun was defective,” Bennett explains.  “He said he wasn’t angry, but he felt betrayed. All of his working life, he relied on the equipment he used to be safe; he never knew of the potential danger of this gun.”

Mr. Oliver may not have been angry, but Gordon and Bennett were. “Hitachi could have done more,” says Gordon. “They knew the gun was dangerous, yet they continued to sell it, continued to expose workers to significant injury. That was the core of this case—a gun was used, which was known by its manufacturer to be defective and to have the potential for creating disaster.”

This is precisely where the concept of freedom came into play. “The defense argued that carpenters, including Mr. Oliver, ought to have the freedom to choose to use a nail gun in the contact trip mode, the freedom to choose more risk if it is justified by utility (the speed of operation of the nail gun),” explains Gordon. “But we argued that this case was not about ‘freedom  to,’ but, instead, ‘freedom from.’

“Irrespective of politics and all the issues we face as a nation, we are a country that cares most about the health, safety and welfare of our people,” says Bennett. “That translates to freedom from being injured, freedom from being maimed, freedom from being killed, freedom from defective products. Our Founding Fathers came to this country to experience freedom from tyranny. Mr. Oliver’s ‘freedom from’ being exposed or subjected to a  dangerous and defective product  that Hitachi knowingly manufactured and sold to the public is the distinction the defense failed to understand.”

But the jury did understand. They voted in favor of freedom from having your life as you know it destroyed due to someone’s unconscionable disregard for human safety.

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