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Candy's dispenser not defective, manufacturer claimed

Type:

Verdict-Defendant

State:

New York

Venue:

Federal

Court:

U.S. District Court, Eastern District

Injury Type(s):

head-headaches neck-bulging disc; cervical other-rhizotomy mental/psychological-anxiety mental/psychological-zone of danger mental/psychological-emotional distress

Case Type:

Products Liability - Design Defect, Failure to Warn, Marketing Defect

Case Name:

Mary Elizabeth Jordan Flickinger, O.D.; James Bradley Flickinger, O.D.; and D.J. F., a minor, by and through his Natural Parents and Guardians, Mary Elizabeth Jordan Flickinger, O.D. and James Bradley Flickinger, O.D. v. Trade Fixtures, LLC, in its own right, and d/b/a Newleaf Designs and/or Trade Fixtures Newleaf Designs; Trade Fixtures Newleaf Designs, LLC; Display Technologies, LLC, in its own right and/or d/b/a Display Technologies of New York; Mars, Inc.; M&M/Mars, Inc; and Mars Chocolate North America, LLC

Date:

July 2, 2013

Parties

Plaintiff(s):

D.J. F. , 

James Bradley Flickinger (Male), 

Mary Elizabeth Jordan Flickinger (Female, 37 Years)

Plaintiff Attorney(s):

Jay W. Dankner; Dankner, Milstein & Ruffo, P.C., New York, NY, trial counsel, Hourigan, Kluger & Quinn, PC, Kingston, PA; New York, NY, for D.J. F., James Bradley Flickinger, Mary Elizabeth Jordan Flickinger

Plaintiff Expert(s):

Robert Anders ; Industrial Design; Warwick, NY called by: D.J. F., James Bradley Flickinger, Mary Elizabeth Jordan Flickinger ■ Robert Sugarman Ph.D., P.E.; Experimental Psychology; Buffalo, NY called by: D.J. F., James Bradley Flickinger, Mary Elizabeth Jordan Flickinger ■ Matthew Kline M.D.; Physical Medicine; Bryn Mawr, PA called by: D.J. F., James Bradley Flickinger, Mary Elizabeth Jordan Flickinger

Defendant(s):

Mars Inc., 

M&M/Mars Inc., 

Trade Fixtures LLC, 

Display Technologies, LLC, 

Mars Chocolate North America, LLC, 

Trade Fixtures New Leaf Designs LLC

Defense Attorney(s):

James Burke; Wilson, Elser, Moskowitz, Edelman & Dicker LLP; New York, NY, for Mars Inc., M&M/Mars Inc., Trade Fixtures LLC, Display Technologies, LLC, Mars Chocolate North America, LLC, Trade Fixtures New Leaf Designs LLC ■ Adam Detsky; Wilson, Elser, Moskowitz, Edelman & Dicker LLP; New York, NY, for Mars Inc., M&M/Mars Inc., Trade Fixtures LLC, Display Technologies, LLC, Mars Chocolate North America, LLC, Trade Fixtures New Leaf Designs LLC ■ None reported; ; for Mars Inc., M&M/Mars Inc., Trade Fixtures LLC, Display Technologies, LLC, Mars Chocolate North America, LLC, Trade Fixtures New Leaf Designs LLC

Defendent Expert(s):

Neal Growney Mechanical; Franklin Lakes, NJ for Mars Inc., M&M/Mars Inc., Trade Fixtures LLC, Display Technologies, LLC, Mars Chocolate North America, LLC, Trade Fixtures New Leaf Designs LLC ■ Seth Jones Neurology; Scranton, PA for Mars Inc., M&M/Mars Inc., Trade Fixtures LLC, Display Technologies, LLC, Mars Chocolate North America, LLC, Trade Fixtures New Leaf Designs LLC ■ Jamie Stallman Radiology; Dunmore, PA for Mars Inc., M&M/Mars Inc., Trade Fixtures LLC, Display Technologies, LLC, Mars Chocolate North America, LLC, Trade Fixtures New Leaf Designs LLC ■ Steven Pietropaolo Engineering; North White Plains, NY for Mars Inc., M&M/Mars Inc., Trade Fixtures LLC, Display Technologies, LLC, Mars Chocolate North America, LLC, Trade Fixtures New Leaf Designs LLC ■ Michael Carciente Neurology; Great Neck, NY for Mars Inc., M&M/Mars Inc., Trade Fixtures LLC, Display Technologies, LLC, Mars Chocolate North America, LLC, Trade Fixtures New Leaf Designs LLC

Insurer(s):

Royal & SunAlliance Insurance USA

Facts:

On Oct. 26, 2008, plaintiff Mary Elizabeth Jordan Flickinger, 37, an optometrist, visited a store that was located at 1514 Broadway, in Manhattan. She was accompanied by her son. The store contained a carousel that housed a series of lever-controlled "Gravity Feed Bins" that dispensed candy. Each bin was secured in a "swing-down arm" cradle. Flickinger claimed that one bin fell while she was pulling its lever. The object struck Flickinger, and she claimed that she sustained injuries of her head and neck. Flickinger sued the manufacturer of the Gravity Feed Bin and its cradle, Little Rock, Ark.-based Trade Fixtures LLC; two related entities, Trade Fixtures New Leaf Designs LLC and Display Technologies, LLC; the company that owned the dispenser that struck Flickinger, McLean, Va.-based Mars Inc.; and two related entities, M&M/Mars Inc. and Mars Chocolate North America, LLC. Flickinger alleged that the Gravity Feed Bin and its cradle were defectively designed and marketed, that Trade Fixtures and its related entities were liable for the defects, and that Mars and its related entities were strictly liable for the defects. Flickinger, Mars, M&M/Mars and Mars Chocolate North America negotiated a settlement. Terms were not disclosed. The matter proceeded to a trial against Trade Fixtures, Display Technologies and Trade Fixtures New Leaf Designs. Flickinger's counsel claimed that the accident was a result of the dispenser having been inadequately secured in the cradle. They contended that the cradle and dispenser were intended to be attached via pairs of slots and tabs, but that the dispenser's tabs had not been inserted in the cradle's slots. They suggested that Trade Fixtures should have designed a sliding mechanism that locked the devices. They also presented an expert who opined that the devices should have displayed warnings that depicted proper attachment and installation of the devices, but that such warnings were not provided. However, during cross-examination, the expert acknowledged the obvious nature of the method by which the devices were to be attached and installed. Defense counsel noted that Flickinger claimed that the dispenser fell after two tugs of its lever. They contended that an improperly installed device would have fallen after a single tug of the lever. They suggested that Flickinger did not provide a credible account of the manner in which the accident occurred. Defense counsel also noted that the dispenser had been installed in 2001, and they estimated that the device had safely dispensed more than 6 million servings of candy. They contended that a similar accident had not previously occurred at the Manhattan store or any of the thousands of stores that use Gravity Feed Bins.

Injury:

Flickinger claimed that she sustained trauma that produced bulges of her C4-5, C5-6 and C6-7 intervertebral discs. She also claimed that she sustained damage of her neck's atlanto-axial joint, which controls backward and forward movement of the head. She contended that the latter injury caused severe headaches, though she acknowledged that she had previously experienced migraines. Flickinger did not require immediate medical attention. After nine months had passed, she began a course of treatment that ultimately included 11 rhizotomies, which involved the destruction of roots of irritated nerves. She claimed that additional surgery may be necessary. Flickinger claimed that she suffers residual pain that hinders her performance of her job's duties. She contended that she has had to reduce the amount of time that she devotes to work. She also claimed that her pain hinders her performance of her household chores. She sought recovery of past and future medical expenses, past and future lost earnings, and damages for past and future pain and suffering. Her husband presented a derivative claim. Ms. Flickinger also claimed that her son suffered anxiety and distress that stemmed from the experience of viewing her accident. She sought recovery of his zone-of-danger damages, but that claim was ultimately withdrawn. Defense counsel contended that Ms. Flickinger's headaches and injuries predated the accident.

Result:

The jury rendered a defense verdict.

Trial Information:

Judge:

Jack B. Weinstein

Trial Length:

12  days

Trial Deliberations:

3  hours

Jury Vote:

8-0

Post Trial:

Judge Jack Weinstein denied plaintiffs' counsel's motion to set aside the verdict.

Editor's Comment:

This report is based on court documents, information that was provided by plaintiffs' counsel, and information that was provided by counsel of Display Technologies, Trade Fixtures and Trade Fixtures New Leaf Designs. The remaining defendants' counsel was not asked to contribute.