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Plaintiff Awarded $5,042,432

Nov 16, 2005 | Staff | VerdictSearch New York Reporter

  Supreme Court, Second Judicial District, Kings County, New York

JEAN CLAUDE PAUL AND ROZANIA PAUL V. PHILLIP BROTHERS CHEMICALS INC., AND

ENQUIST CHEMICAL COMPANY, INC.

No. 26891/98

DATE OF VERDICT/SETTLEMENT: November 16, 2005

TOPIC: PRODUCTS LIABILITY - FAILURE TO WARN - PRODUCTS LIABILITY - MARKETING DEFECT ZINC CYANIDE'S DANGERS NOT DISCLOSED, PLAINTIFF CLAIMED

SUMMARY:

  AWARD: $5,042,432

  RESULT: Verdict-Plaintiff

  The jury rendered a plaintiffs' verdict. It found that Phillip Brothers Chemicals failed to properly warn that zinc cyanide could be volatile when mixed with other substances. The Pauls were awarded a total of $5,042,432.

EXPERT WITNESSES:

  Plaintiff: Alan C. West, Ph.D.; Chemical Engineering; New York, NY Carl J. Abraham; Chemical Products; Great Neck, NY Kip W. Dolphin; Ophthalmology; New York, NY Leonard R. Freifelder; Economic Analysis; New York, NY Paul S. Striker, M.D.; Plastic Surgery/Reconstructive Surgery; New York, NY

ATTORNEYS:

  Plaintiff: Stuart L. Finz; Finz and Finz, P.C.; Jericho, NY Todd M. Rubin; Finz and Finz; Jericho, NY

  Defendant: Timothy D. Gallagher; McMahon, Martine and Gallagher; New York, NY Joseph A. Maria; White Plains, NY

JUDGE: Arthur M. Schack

STATE: New York

COUNTY: Kings County

INJURIES: Paul was placed in an ambulance and transported to New York University Medical Center, in Manhattan. Doctors determined that he had sustained second- and third-degree burns of 22% of his body. Paul claimed that his right eye sustained damage that destroyed its functional ability. His expert plastic surgeon agreed that the vision loss was a product of burns and intense heat that were created by the explosion.

SUMMARY:

  Insurance Carrier: American International Group Inc. for Phillip Brothers Chemicals

FACTS:

On March 13, 1996, plaintiff Jean Claude Paul, 49, an electroplater's helper who worked at C & C Plating Co.'s Manhattan plant, was engaged in the normal course of his work duties. Paul was asked to strengthen a brass plating solution. The process required the addition of zinc cyanide.

Paul claimed that he procured two jugs of the brass plating solution and two scoops of dry zinc cyanide. He contended that the elements were placed in an empty bucket, mixed thoroughly and added to the solution tank that contained the remainder of the brass plating solution. He claimed that a near-immediate chemical reaction produced an explosion of steam and scalding liquid. He sustained severe burns that affected more than 22% of his body and destroyed one of his eyes.

Paul sued the zinc cyanide's alleged importer or manufacturer, Fort Lee, N.J.- based Phillip Brothers Chemicals Inc., and the zinc cyanide's alleged distributor, Brooklyn-based Enquist Chemical Co. Inc. He alleged that the defendants failed to properly warn that zinc cyanide could be volatile when mixed with other substances.

Paul and Enquist Chemical subsequently agreed to a $450,000 settlement. The matter proceeded to a trial against Phillip Brothers Chemicals.

Plaintiffs' counsel contended that the zinc cyanide was imported or manufactured by Phillip Brothers Chemicals. Paul acknowledged that the zinc cyanide was drawn from a container that did not bear Phillip Brothers Chemicals' name, but his counsel contended that the container bore other physical indicators that established that it had been provided by that company. Plaintiffs' counsel also contended that Phillip Brothers Chemicals' warehouse staff did not ensure that all outgoing containers bore the company's name.

Paul's chemical-engineering expert agreed that the mixture produced a violent exothermic reaction that caused a quick heat buildup and, ultimately, an explosion. He opined that the reaction and the explosion were reasonably foreseeable occurrences and that, as such, Paul should have been warned that the mixture could have produced a dangerous reaction. Paul claimed that he was not warned that such a reaction could occur.

Phillip Brothers Chemicals' counsel contended that zinc cyanide can not produce the volatile reaction that Paul had described. He claimed that the explosion occurred because Paul's mixture was erroneously added to a nickel plating solution that occupied a solution tank that was adjacent to the one that contained the remainder of the brass plating solution. Alternatively, defense counsel contended that the explosive mixture did not contain any zinc cyanide. He claimed that Paul erroneously believed that he was using zinc cyanide, but that he was actually using boric acid. He further suggested that Paul's injuries could have been caused by solution that splashed while the mixture was being added to the solution tank.

Phillip Brothers Chemicals also contended that it had previously stopped manufacturing zinc cyanide and that it was not the importer of the zinc cyanide that Paul claimed to have used. One of its salesmen claimed that its zinc cyanide was delivered via containers that bore three distinct markers: the company's name, an order number and a blue warning label. He contended that Paul's mixture did not include any substance that was drawn from such a container. However, the salesman acknowledged that the incident occurred while Phillip Brothers Chemicals was ceasing its manufacturing of zinc cyanide and, as such, he conceded that the container's substance could have been zinc cyanide that was owned or produced by the company.

Phillip Brothers Chemicals also claimed that its containers were all accompanied by a material safety data sheet that provided relevant product specifications and product-use instructions. In response, plaintiffs' counsel contended that the data sheets' language did not constitute an adequate warning and that all warnings should have been affixed to the container.

Phillip Brothers Chemicals' counsel further argued that Enquist Chemical bore some or all liability for the incident. He moved for that company's inclusion on the verdict sheet, but the motion was denied.

Paul's burns were treated via skin grafts, but he bears residual torso scars. He claimed that he cannot resume work. He sought recovery of his past and future lost wages and damages for his past and future pain and suffering. His wife, Rozania, presented a loss-of-services claim.

Defense counsel commissioned two independent medical examinations of Paul, but the examining doctors did not testify at the trial.