New Jersey Verdicts

Plaintiff(s):

George Lemunyon , 

Paula Wirth-Lemunyon (Female, 43 Years)

Plaintiff Attorney(s):

Brian J. Duff;
Kalavruzos, Mumola, Hartman & Lento, LLC;
Hamilton,
NJ,
for
George Lemunyon, Paula Wirth-Lemunyon

Plaintiff Expert(s):

Jim Goldman; C.P.P.; Packaging; Greensboro,
GA called by:
Brian J. Duff ■ Parvaiz Malik; M.D.; Hand Surgery; Hamilton,
NJ called by:
Brian J. Duff

Defendant(s):

McCormick & Co.

Defense Attorney(s):

Stephen A. Rudolph;
Rudolph & Kayal;
Manasquan,
NJ,
for
McCormick & Co.

Insurer(s):

Travelers Property Casualty Corp.

On Aug. 23, 2012, plaintiff Paula Wirth-Lemunyon, 43, a real estate agent, was in her kitchen, cooking dinner for her family, in Chesterfield, when her hand was injured in an accident. She had been making a salad and went to the pantry to retrieve a 32-ounce glass jar of Gilroy Farms-brand minced garlic. She could not open the metal lid, which seemed tighter than usual. In an attempt to loosen the lid, she held the top of the jar with her left hand and struck the bottom of the jar once with the palm of her right hand. The jar exploded into many small and large pieces. One glass shard sliced her right index finger, severing the two main tendons and a nerve. After the accident, Wirth-Lemunyon’s husband had allegedly discarded the jar’s remnants but retrieved the lid days later, at the advice of an attorney. The lid did not identify the manufacturer or seller. The only information was a three-letter, seven-number “code” and a “Best Buy” date. Wirth-Lemunyon produced a receipt which allegedly showed that she had bought the jar at the McGuire Air Force Base Commissary, about three months before the accident. Several months after the accident, she returned to buy another 32-ounce jar of Gilroy Farms garlic. The UPC bar-code number on the jar matched the number on the pre-accident commissary receipt. The match, plaintiff’s counsel claimed, created an inference that the jar that shattered was a Gilroy Farms product. Gilroy Farms is owned by Baltimore-based spices and seasonings giant McCormick & Co. Wirth-Lemunyon sued McCormick & Co. She alleged, under the New Jersey Product Liability Act, claims of strict liability and manufacturing defect. Counsel for Wirth-Lemunyon, with support from an expert in glass and packaging, argued that the jar’s lid had been over-tightened during the manufacturing process. Wirth-Lemunyon’s expert in glass and packaging examined the lid and attached glass fragment, and concluded that the lid had been overtightened onto the glass jar threads during the manufacturing process, when the capping machine secured the metal lid to the glass jar. The expert opined that the overtightening at the factory created a small glass fracture or fractures where the lid’s lugs, otherwise known as the fingers or claws under the lid, clamp on the glass threads. According to the expert, when Wirth-Lemunyon struck the bottom of the jar with the palm of her hand, this hidden defect/fracture in the glass threads became the “source” of the jar explosion. The expert stated that the lid was overtightened at the factory by performing an FDA “pull-up” test. Under FDA guidelines, a pull-up test is performed to determine lid tightness at the factory and is done by measuring the distance between two vertical lines: the vertical glass seam on the jar and the edge of the first lid lug to the right. The expert opined that, under FDA guidelines, if the measurement between the two lines is .25 inches to .625 inches, then the lid was appropriately tightened at the factory. Any measurement less than .25 inches would be too tight, while any measurement over .625 inches would be too loose. The expert concluded that the broken jar had a pull-up measurement of zero inches, which is very tight and in violation of FDA guidelines. The company’s counsel maintained that, without the label to identify the manufacturer or seller, McCormick could not determine if it manufactured or sold the jar. The limited information stamped on the top of the lid was insufficient to identify the product manufacturer or seller. McCormick argued that, without the rest of the glass fragments, it could not determine if there was a manufacturing defect with the product, or conduct a glass-fracture analysis to determine other potential causes of the glass breakage, such as the jar breaking when it struck the granite island countertop after Wirth-Lemunyon struck it with her hand. Alternatively, if it was McCormick’s product, then there was no manufacturing defect with the product, the defense argued.

After the accident, Wirth-Lemunyon wrapped her bleeding hand in a towel and called her mother, who drove her to an emergency room. She was diagnosed with lacerations of the index finger of her right, dominant hand, at the flexor digitorum profundus tendon and digitorum sublimis tendon. Wirth-Lemunyon received multiple stitches and was discharged with names of hand surgeons to contact. Three days later, Wirth-Lemunyon, after following up with a surgeon, underwent repair of the flexor digitorum profundus tendon, repair of lacerated digitorum sublimis tendon, repair of the radial digital nerve of right index finger and removal of deep-embedded glass. Following surgery, Wirth-Lemunyon treated with four months of physical therapy, which consisted of exercise, and she followed up with her surgeon. No further treatment was rendered. Wirth-Lemunyon’s hand surgeon testified that, when these tendons are severed, they react like rubber bands and can recede downward into the palm and wrist. A typical tendon surgery requires the surgeon to cut farther and farther along the palm toward the wrist until he finds the severed tendon. Once located, the surgeon then has to “fish” the tendon back along through the palm and up into the finger, where it is reattached to the other severed end. The physician opined that Wirth-Lemunyon’s hand injuries and ongoing symptoms are permanent. Wirth-Lemunyon recounted how her months of physical therapy were extremely painful, and consisted of repeatedly pushing her index finger forward and backward. She testified that she has ongoing numbness issues with her finger and hand, as she is unable to fully extend her finger. She has a scar that runs from the middle of her index finger through the middle of her palm. Wirth-Lemunyon alleged that, despite her pain and restrictions, she is able to work and perform her activities of daily living. Her husband sought to recover damages for his claim for loss of consortium. McCormick did not dispute Wirth-Lemunyon’s injuries and treatment.

The jury rendered a defense verdict. It found that McCormick manufactured the jar, but that there was no defect in the jar when it left McCormick’s control.

Judge:

Janet Z. Smith

Demand:

$200,000

Offer:

None

Trial Length:

4
 days

Trial Deliberations:

45
 minutes

Jury Vote:

7-1

Jury Composition:

3 male/ 5 female

This report is based on information that was provided by defense counsel. Plaintiffs’ counsel did not respond to the reporter’s phone calls.