Facts

On Aug. 15, 2008, Adelaide Mealy, 81, who had lower extremity paralysis since 1952, when she contracted polio, was being moved by her husband of 57 years, Donald Mealy, in Guldmann Lift System sold and installed by franchisee B-Mobile Inc. The system utilized a ceiling-mounted track, which took an electric hoist, which lifted a polyester sling where the occupant sat. As Donald Mealy was positioning his wife over the commode in the bathroom, one of the four straps failed and Adelaide fell to the floor, sustaining bilateral hip fractures.

In June 2006, Adelaide Mealy was being lifted in a portable Hoyer Lift to be transferred when it tipped over and she fell to the ground, sustaining a right hip fracture. That fracture healed in a non-union of the bone.

Due to her paralysis and severe osteoparetic bone, the orthopedic consult recommended that for this Aug. 15 fall, plaintiff not undergo surgery for the same reason. Both hips healed with non-union of the bone and the right hip broke at a different location, leaving a bone fragment.

Plaintiffs filed suit, alleging product defect.

After plaintiffs rested, the defense made a motion pursuant to C.C.P. section 631.8 as to Adelaide Mealy's claim and Donald Mealy's claim for NIED and loss of consortium. The court denied the motion as to Adelaide Mealy but granted the motion as to Donald Mealy's claim.

PLAINTIFF'S CONTENTIONS:
Plaintiffs contended that Guldmann had the sling manufactured in China with specifications that called for the straps to be sewn with polyester thread utilizing a CNC computerized sewing machine in a very specific double square pattern. The four straps on the subject sling, one of which failed, were sewn with Nylon-6 thread on a non-computerized sewing machine with a square pattern and an "X" in the middle. Plaintiffs also contended that Nylon-6 is a poor and defective thread to use because it absorbs water, then loses it tensile strength over time and stretches, until it eventually and suddenly failed.

DEFENDANTS' CONTENTIONS:
The defense conceded that Nylon-6 was improper thread but claimed its vendor sewed all of its lift slings with polyester thread with a computerized machine. No other slings were located that were made the way the subject sling was found after the failure and no reports of Guldmann sling failures were filed with the FDA, which monitors such data. Furthermore, the thread pattern was different from that used by Guldmann, and the newer sewing had been done by hand, instead of by machine. Visual exam showed remnants of the original thread underneath the newer threads. Defendants claimed someone on behalf of plaintiffs modified the sling after installation.

Settlement Discussions

Pre-trail, plaintiffs made a CCP 998 demand of $1,000,000 policy limits ($750,000 for Adelaide Mealy and $250,000 for Donald Mealy). During trial, plaintiffs demand was lowered to $475,000. Defendants offered $300,000. The parties attended mediation before the Hon. William Sheffield, retired, which was unproductive. During trial, Justice J. Gary Hastings, retired, supervised two unsuccessful settlement discussions.

Specials in Evidence

The parties stipulated that medical expenses incurred were $75,178 and that plaintiff's collateral source benefit, Secure Horizons Medical Plan, only paid $21,671 for complete satisfaction of the bills.

Injuries

Adelaide Mealy claimed that she was a highly functional paraplegic for 30 years after contracting polio in 1952 until post-polio syndrome set in around 1985, causing her to decline her function by 1 to 2 percent per year, eventually requiring a Hoyer Lift for transfers, then the Guldmann System to provide safe transfers from bed to bathroom and wheelchair. She claimed that after she recuperated from the January 2006 fall (approximately one year) she was able to sit in her wheelchair for hours at a time and was capable of traveling, attending movies, theater, museums, church and visiting friends and family. Now she has significant pain when sitting which only allows her to be in a wheelchair for one hour at a time, and requiring bed rest the rest of time. The bed rest complicates her post-polio syndrome by de-conditioning her upper torso muscles. She now requires 24/7 attendant care versus the four to five hours per day her husband previously provided. Donald Mealy claimed negligent infliction of emotional distress in witnessing his wife's fall and for loss of consortium for providing attendant care nearly 24 hours a day and being unable to enjoy their prior life. Defense conceded that 24/7 attendant care was required, but claimed it was from her polio, heart problems, arthritis, excessive weight, severe osteoporosis and glaucoma. According to the medical records, plaintiff had the same problems after the Aug. 15 fall that she did before and after the January 2006 fall. On cross-examination, Donald Mealy admitted that their relationship was even better than before the incident.

Result

$561,084 as to Adelaide Mealy. Defense as to Donald Mealy. The court found the sling defective in manufacture and held the defendants 100 percent jointly and severally responsible. The court concluded that plaintiff required 2/47 attendant care since the accident and will require such care for the following two years, caused by the accident. However, the court reduced the cost of this care by 20 percent, equaling the amount of time the husband spent attending to his wife before the subject fall. The court awarded $229,950 for this attendant care; $150,000 for past non-economic loss and $100,000 for future non-economic loss. The court also awarded the $75,178 for past medical care, inviting the defendant to bring a post-decision motion to reduce that amount by the amount of collateral source benefits, if warranted under the case law.

Other Information

Defendant subsequently filed a motion to reduce the medical award to the amount actually paid (Hanif motion). The court denied the motion ruling that defendant was not entitled to the benefit of plaintiff's collateral source pursuant to the Collateral Source Rule. Donald Mealy is appealing the decision as to his claims. Adelaide Mealy's judgment has been satisfied.