Hayes+Associates, Inc, Analysis of a Dog Walking Trip and Fall Contributed to a Defense Verdict

Falls on other peoples’ property are common, and litigation often ensues as injured people assign blame to faults in their surroundings and culpability to the owners.   Biomechanical analysis can shed light on what initiated a particular fall and thereby help a jury decide whether responsibility lies with the property owner or the Plaintiff.

In 2004, Marina Schwartz, 51, wearing open-toed, open-heeled sandals, was out walking her dog in her Sunrise, Florida neighborhood. In front of a neighbor’s house, she tripped, stumbled, and fell, fracturing her left arm. Ms. Schwartz alleged that an uneven sidewalk on her neighbor’s property was the direct cause of her fall and brought suit accordingly. 

The defendants sought representation by Carl W. Christy of Luks, Santaniello, Perez, Petrillo & Gold, Orlando, FL (http://www.ls-law.com). The firm retained Hayes+Associates, Inc, to analyze and reconstruct the fall.

A team at H+A analyzed Ms. Schwartz’ narrative of the incident, her medical records (including those from a surgery 43 days prior to the incident which carried a post-operative diagnosis of secondary vision loss), as well as depositions of Defendants and a neighbor/witness.

In their investigation, the H+A team took into consideration the unevenness of the sidewalk, the literature on post-trip recovery steps, and Schwartz’ description to a neighbor that: “I tripped over my own two feet”. The H+A team also considered the distance from the sidewalk imperfection to the location where Ms. Schwartz ended up after her stumble.

In every fall, the injuries sustained and position of rest can be seen as signatures to the fall. The distance between the sidewalk bump and Ms. Schwartz’ feet at her final rest position was 17 ft, far beyond where her feet would have come to rest had her fall been initiated by the uneven sidewalk. 

Testimony by Wilson C. “Toby” Hayes, PhD, indicated that if the raised sidewalk had been the direct cause of her fall, Ms. Schwartz would have landed ten feet closer to the alleged tripping point and that she was “likely to have tripped over her own two feet at a point much closer to her final position of rest.”

The jury in the case concurred and found for the defense. 

Hayes+Associates, Inc. (http://www.hayesassoc.com) is an expert witness and consulting firm, based in Corvallis, OR. The company brings more than 75 years of collective experience in academic research, university teaching and forensic testimony to practice areas that include vehicle collisions, premises safety, slips and falls, products liability, worker safety, sports and recreation, patent litigation and criminal matters.

Hayes+Associates Analysis Contributes to $15.3 Million Jury Verdict in Case of Railroad Switchman Injured by Leaked Fumes from Fracking Wastewater

Hayes+Associates, Inc. Associate, Erik D. Power, MS, PE, authored two reports in a case involving a railway switchman severely injured when the over-speed coupling of railroad tank cars caused the leakage of hazardous fumes from fracking wastewater.  Power’s reports helped in securing $15.3 million in damages as well as heavy sanctions against the defendant railroad, Burlington Northern Santa Fe (BNSF).

 In January 2014, Scott Kowalewski, age 53, was working as a switchman for BNSF in the Northtown Freight Yard in Minneapolis when, less than 40 feet away, 11 cars carrying the liquid/gaseous refuse from Occidental Energy’s fracking fields in Levelland, TX, were being coupled at speeds in excess of what is accepted to be safe.  Kowalewski smelled a rotten egg odor, felt a burning in his chest, and later collapsed in a break room and was taken to a hospital.

 BNSF immediately dismissed the incident as minor, reporting that Kowalewski had been exposed to sulphur dioxide from a leaking tank—but it was later proved that the tank containing sulphur dioxide was not present at the site until later in the day. However, given the BNSF report, doctors treated Kowalewski for inhalation of that gas.

 The 11 cars being coupled near Kowalewski were carrying "casing head gasoline," a known inhalation hazard comprised of various hydrocarbons including benzene, hydrogen sulfide, and toluene.

 As a result of exposure to the toxins, and the initially misdirected treatment caused by the BNSF report of a sulphur dioxide leak, Kowalewski sustained severe and permanent injuries to his respiratory system, throat and eyes, and to his neurological system. He was diagnosed with Reactive Airways Disease Syndrome (RADS), vocal cord dysfunction, Posttraumatic Stress Disorder, and Parkinsonism.  His condition, which causes difficulty in swallowing and moving, is progressive and incurable.

 Kowalewski sought representation by Paula Jossart of Jossart Law Office, LLC, Burnsville, MN, (http://www.jossartlaw.com/). He filed suit in January 2017, alleging negligence under the Federal Employers' Liability Act (FELA), the Federal Safety Appliance Act (FSAA), and federal safety regulations. Subsequently, the firm retained H+A to analyze the incident.

 Using fundamental principles of engineering physics, H+A Associate, Erik D. Power, analyzed the over-speed coupling of the 11 cars carrying hydrocarbons.

 In his initial report in the matter, Power determined the range of speed of the cars at coupling, finding that they were traveling downgrade between 5.1-7.6 mph, speeds significantly in excess of the 4 mph prescribed speed.

 Two months later, Power generated a second report in rebuttal to a defense expert who downplayed the role of excessive speed in the event, stating that it could not have caused the leak.  In rebuttal, Power took into consideration the circumstances of the actual event and concluded that the defense report was flawed and misleading in that it cited tank car coupling studies performed under substantially different circumstances.  Assessing impact speed and risk as influenced by the circumstances of the incident (the weight and number of cars involved, and the volatility of the liquids they contained) Power concluded that the coupling collision force created significantly more pressure in the tanks than found in the study presented by the defense, and that this additional pressure caused the leakage.

During the proceedings, BNSF filed Motions to Exclude Expert Testimony. These were denied. 

Influenced by Power’s reports, Hennepin County Judge Amy Dawson found the railroad negligent in causing the 11 cars carrying hydrocarbons to couple at excess and dangerous speed in the Northtown yard and failing to inspect the 11 cars' release valves to ensure proper calibration and avoid unnecessary pressure relief venting.

In February 2018, Judge Dawson ordered BNSF to pay Plaintiff’s costs and attorney’s fees, leaving it to a jury to determine damages.

Subsequently, a jury awarded Kowalewski $15,343,753 in damages. In addition, BNSF was found liable for $1.1 in attorney’s fees and $89,600 in expenses.  Moreover, BNSF, found to have engaged in egregious misconduct during the proceedings, was fined $5.8 million in financial sanctions, an amount deemed sufficient to deter future misconduct.

The matter came to a close last week, 5½ years after the incident, when BNSF wrote the check for damages for Scott Kowalewski.

http://www.startribune.com/hennepin-county-jury-awards-15-million-to-rail-worker-who-inhaled-noxious-fumes/475019713/?refresh=true

Erik D. Power, MS, PE, consults in the areas of vehicular accident reconstruction and injury biomechanics. He is a Registered Professional Mechanical Engineer in the State of Oregon, and a Fully Accredited Traffic Accident Reconstructionist. Mr. Power earned his M.S. in Mechanical Engineering with a concentration on injury biomechanics from Virginia Tech, where he worked in the Virginia Tech Center for Injury Biomechanics Laboratory. He also has prior work experience as a biomechanical engineering contractor for the National Highway Traffic Safety Administration.

 Hayes+Associates, Inc, (http://www.hayesassoc.com) is an expert witness and consulting firm, based in Corvallis, OR. The company brings more than 75 years of collective experience in academic research, university teaching and forensic testimony to practice areas that include vehicle collisions, premises safety, slips and falls, products liability, worker safety, sports and recreation, patent litigation and criminal matters.

Hayes+Associates, Inc, Analysis Contributed to Plaintiff Verdict in Premises Liability Case, Helped Promote Safer Conditions in Family Recreation Venue

The owner of a public venue has a responsibility to ensure that their property is safely navigable by all guests.  When an owner fails to meet this goal and an injury occurs, biomechanical analysis can help a jury determine whether or not the owner is at fault, and even promote improvements in safety.

In May, 2006, Kacee Poteet, age 32, was entering Pirate’s Cove Adventure Golf in Branson, MO, with her husband and three children.  Carrying her 18-month-old on her left hip, Ms. Poteet paused on the entry landing to wait for her husband, who was pushing a stroller up the wheelchair ramp.  As he drew near, Ms. Poteet stepped off the 11” landing with her left foot, unaware that there was no intermediate step to the sidewalk below. As a result of the incident, Ms. Poteet sustained severe fractures to the left ankle.

The Poteets retained Brad Bradshaw MD JD LC, Springfield, MO, (https://www.bradbradshaw.com) to represent them in their case. In turn, Dr. Bradshaw asked Hayes+Associates, Inc, to analyze the biomechanics of Ms. Poteet’s injuries.

H+A Associate, Ellen L. Lee, PE, evaluated the case based on the fundamental laws of physics, the biomechanics of stair descent, and the forces on Ms. Poteet’s ankle.  She determined that the forces on Ms. Poteet’s ankle from unexpectedly stepping off the unguarded landing were substantially greater than established injury tolerance limits for her ankle.

Lee also used the International Building Code guidelines for the design of safe steps to demonstrate that the 11” drop at Pirate’s Cove far exceeded safe stair dimensions.

H+A CEO Wilson C. “Toby” Hayes, PhD, provided videotaped testimony and the jury found for the Plaintiff, assigning 65% responsibility to the Defendant.

 Subsequent to the incident, Pirate’s Cove installed a barrier at the location so that the only option for entry is the secure two-step decent.

Hayes+Associates, Inc. (http://www.hayesassoc.com) is an expert witness and consulting firm, based in Corvallis, OR. The company brings more than 75 years of collective experience in academic research, university teaching and forensic testimony to practice areas that include vehicle collisions, premises safety, slips and falls, products liability, worker safety, sports and recreation, patent litigation and criminal matters.

Hayes+Associates Testimony Contributed to Defense Verdict in Moonwalking Fall Injury Case

In 2011, firefighter Kevin Wilson, 35, having been drinking and while moonwalking in heavy rain and leaning into 70 mph winds on a third story wooden balcony at a house on the Oregon Coast, fell over the railing onto a brick patio 23 feet below.

Wilson sustained surprisingly mild injuries including a concussion and elbow and rib fractures. Subsequently, he brought suit against the builder of the balcony, Ronald Hults Construction, Inc., alleging that the balcony railing was defective and had been the direct cause of his fall.

The defendant was represented by Robert D. Lowry of Eugene, OR (lowry-law.com), who retained Hayes+Associates, Inc, to conduct a scientifically reliable reconstruction of the fall and determine whether or not the railing had caused the fall.

An H+A team, including Engineering Associate Erik D. Power, PE, and President Wilson C. “Toby” Hayes, PhD, measured the height of the balcony, determined the wind speeds and, based on the fundamental laws of physics, generated a dynamic model of Mr. Wilson’s moonwalking form impacting the top rail of the balcony railing.  Given Mr. Wilson’s height, the H+A analysis showed that it was the confluence of high wind velocity, slick surface, and Mr. Wilson’s moonwalking momentum toward the railing that caused his fall, not the railing itself.

The jury concurred and found for the defense.

Hayes+Associates, Inc. (http://www.hayesassoc.com) is an expert witness and consulting firm, based in Corvallis, OR. The company brings more than 75 years of collective experience in academic research, university teaching and forensic testimony to practice areas that include vehicle collisions, premises safety, slips and falls, products liability, worker safety, sports and recreation, patent litigation and criminal matters.

Fall Reconstruction by Hayes+Associates Contributes to $6.7 Million Settlement and Fall Warning Signs in The Hollywood Hills

Hayes+Associates testimony ten years ago in an LA fall injury case helped produce a $6.7 million settlement, established the presence of a serious fall hazard in The Hollywood Hills, and contributed to the installation of graphic warning signs now visible in Google Street View at the site of the fall.

 In 2006, Michael Lattanzi, 46, a musician and producer from Nashville, TN, paused to rest during a bike ride near the intersection of Durand and Heather Drives in Los Angeles, within sight of the Hollywood sign. 

 Seated on his bike, Lattanzi placed his left foot on a wide roadside curb.  When his foot slipped on the slick curb surface, Lattanzi fell backward down an 11.5-foot cliff, onto a flat grassy hilltop below, carrying his bicycle with him. 

 Lattanzi’s head struck the hill surface first, followed by his torso and legs. When his head hit, Lattanzi heard a loud crunch and lost all feeling in his legs.

 As a result of the fall, Lattanzi suffered catastrophic lumbar spine injuries and paraplegia. 

 In 2008, Lattanzi brought suit against the City of Los Angeles for the hidden, dangerous conditions at the location of his fall.  He was represented by Bruce Broillet and Scott Carr of Greene, Broillet & Wheeler, LLP, Los Angeles, (gbw.law).

 The firm retained Hayes+Associates to analyze the incident and determine if the fall was the direct consequence of a defective and unreasonably dangerous condition at the scene.  An H+A team, led by then Associate Jeremy Bauer, PhD, now of Bauer Forensics (https://www.bauerforensics.com), appraised measurements of the hill, the slickness of the curb, the biomechanics of the falling human form, and the injury thresholds for Mr. Lattanzi’s spinal cord injury. They determined that Lattanzi’s life-changing injuries were the direct result of the slippery curb surface and the precipitous cliff drop beyond it.  H+A founder, Wilson C. “Toby” Hayes, PhD, testified to this effect at trial.

 Subsequently, the case settled before going to the jury. The City of Los Angeles paid Lattanzi $6.7 million over a period of three years.

 As a result of the fall and litigation, the city installed several graphic fall warning signs at the site to prevent future falls.

Hayes+Associates, Inc. (http://www.hayesassoc.com) is an expert witness and consulting firm, based in Corvallis, OR. The company brings more than 75 years of collective experience in academic research, university teaching and forensic testimony to practice areas that include vehicle collisions, premises safety, slips and falls, products liability, worker safety, sports and recreation, patent litigation and criminal matters.