Kipp v. Kuhl

$165,000 Settlement

Date of Settlement: Nov. 25, 2019.

Court and Case No.: C.P. Lancaster No. 17-00245.

Type of Action: Products liability.

Injuries: Hand injury.

Plaintiffs Counsel: Bradley R. Smith, Galfand Berger.

Plaintiffs Experts: Jay S. Talsania, orthopedic surgery, Allentown;  Paul L. Dreyer, engineering, Pennsauken, New Jersey.

Defense Counsel: Kenneth J. Sykes, William J. Ferren & Associates, Blue Bell.

Defense Experts: David S. Zelouf, hand surgery, Philadelphia; Miles F. Buchman, engineering, Fort Washington.

Comment:

On June 22, 2016, plaintiff Tammy Kipp, 49, suffered a crush injury to her right wrist while using a chicken sexing machine at a hatchery plant in Lancaster.

Kipp sued the machine's manufacturer, Kuhl Corp. She alleged that the machine was designed defectively. The chicken sexing machine was used to sort newly hatched chickens by gender.

Male chicks went to one rung of a set of rotating plastic panels that formed a carousel conveyor, while female chicks went to another such rung. At a certain point in the carousel's rotation, the plastic panels would drop to send the male chicks down another chute, and then the plastic panel would rise again, like a trap door. At the end of Kipp's shift, she was cleaning the machine while the carousel of plastic flaps was still rotating. As she reached to remove debris, the plastic panel dropped and caught her hand in a pinch point formed by the plastic panel when it closed.

Kipp's counsel contended that Kuhl knew workers would have to clean the machine meticulously every day. To clean the machine properly, workers needed to be near this pinch point.

In his report, Kipp's expert in industrial engineering opined that the chicken sexing machine was defective and unsafe because it contained exposed pinch points that workers encountered during normal use of the machine. The pinch point should have been guarded against with a fixed guard that prevented a worker from reaching into the dangerous area. According to the expert, workers also should have been warned about the hazard by receiving instructions to shut down the machine when they entered the center of it, from which the pinch point was accessible. While other pinch points on the machine were guarded, and workers were warned about them, the pinch point where Kipp was trapped had no guard and no warning, the expert concluded.

The defense maintained that the chicken sexing machine was not defective. In his report, the defense's expert in industrial engineering opined that the pinch-point hazard was guarded by location and that to access the hazardous area, Kipp had to defy instructions from her employer and crawl beneath the conveyors. The expert stated that Kipp violated the lock-out/tag-out instructions that were included in the machine's manual and enforced by her employer. The machine was initially supplied with two chutes that would have served as guards and prevented access to the pinch point, but those chutes were removed by Kipp's employer, the expert noted.

Kipp's co-worker drove her to an emergency room. Kipp was diagnosed with a crush injury to her right wrist, of her dominant arm. She was discharged and then came under the care of a hand surgeon. On July 15, 2016, almost a month later, Kipp underwent a carpal tunnel release of her right wrist. Following the procedure, she underwent physical therapy through December 2016. She received no further treatment.

In his report, Kipp's expert in orthopedic surgery opined that Kipp reached maximum medical improvement but would continue to suffer from restrictions, including ongoing neuropathy and weakness.

Kipp alleged that in her right wrist she continues to experience a lack of grip strength and dexterity, along with weakness and numbness. This allegedly makes it difficult for her to carry heavy objects. Kipp sought to recover a workers' compensation lien of $37,974, plus damages for past and future pain and suffering.

The defense maintained that Kipp made a full recovery from her injury. There were no objective findings that would justify her ongoing symptoms, the defense's expert in hand surgery noted in his report.

The parties negotiated a pretrial settlement. Kuhl's insurer agreed to pay $165,000.

This report is based on information that was provided by plaintiffs counsel. Defense counsel did not respond to the reporter's phone calls.

—This report first appeared in VerdictSearch, an ALM publication