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Hell on Earth

An ostensibly superficial injury caused by a van falling off a jack resulted in a $2.2 million settlement for plaintiff Kenneth L. Ferguson, who suffers from reflex sympathetic dystrophy.

BY ERON BEN-YEHUDA

photo of the article

Hell may look different to the many religions of the world, but patients suffering with reflex sympathetic dystrophy agree on one thing: their condition feels like it.

Plaintiff Kenneth L. Ferguson can relate.

"I agree 100 percent," he says.

The 46-year-old continues to suffer from the mysterious syndrome since receiving what seemed at first like a minor injury to his left hand and wrist while helping a co-worker change a tire on a company van.

Immediately after the April 1998 accident, Ferguson could move the fingers of his left hand. He had no fractured bones, not even a sprain, and barely a skin abrasion. Now his entire arm is useless, he says.

The Westlake Village resident developed hypersensitivity in the arm. The slightest change in temperature, the most delicate touch, causes him anguish. "It's constant pain," he says. "I go to sleep thinking about it. I wake up thinking about it. And it's all I'm thinking about in between."

He's seen an army of doctors, eight are listed in the court documents. They prescribed pain medication and physical therapy. But without a cure, he sank into a deep depression, even contemplating suicide, court records show.

"It overwhelms (me)," he says.

At least he's set financially for life, says his attorney, Andrew C. Bryman, who filed a lawsuit alleging that defects in a tire jack caused the injury. Ferguson v. Pep Boys, C054803 (L.A. Supr. Ct., settled April 16, 2001).

Bryman pushed through a $2.2 million settlement despite heavy resistance from the jack's manufacturers, distributor and retailer, all named as co-defendants.

Not only did they blame Ferguson and his co-worker's supposed negligence for his injury, but one of the manufacturers also accused the plaintiff of 'malingering' and exaggerating his symptoms, documents state.

Ignoring Product Warnings

On the day of the incident, Ferguson worked as a security guard for the Rand Corp. in Santa Monica. To assist his co-worker, who wanted to replace a flat tire, Ferguson brought out a 1995 model hydraulic scissor jack, the "Effortless Tire Changer," which he bought new at automotive parts retailer Pep Boys in late 1997. He had never used the jack before.

Neither Ferguson nor his co-worker bothered to read the warnings and instructions that accompanied the jack. Bryman argued that these directives would not have made a difference, the defendants contended that, as a result, the two employees placed the jack at a point too far below the van's axle. They asserted that this led the two employees to pump the lifting mechanism beyond the recommended maximum height of 14 inches.

Needing to raise the vehicle a little more, the two employees placed a couple of pieces of wood underneath the jack. One of the defendants termed this maneuver "grossly negligent" in court papers, but Bryman alleged in court records that placing materials under the jack is "not an uncommon practice, and one that is foreseeable."

As the two employees attempted to place the spare tire onto the hub, they heard a loud noise, and the van came off the jack.

Ferguson's left hand and wrist got caught between the tire and the wheel well under the van's fender. Ferguson says he never recovered.

Engineer 'Made the Case'

Attorneys on both sides agree that the lawsuit turned in the plaintiff's favor based on the deposition of Saied Hussaini from Miami-based Rally Manufacturing Inc. Rally designated Hussani the "person most knowledgeable" about the jack. "I think it made the case," Bryman says.

With Hussaini's testimony, Bryman says he had enough evidence to support an allegation that Rally "despicably' disregarded safety, Bryman demanded punitive damages.

Rally's counsel at the time, Sherry L. Grguric of Bragg, Short, Serota & Kuhiva of Los Angeles, didn't return repeated phone calls for comment.

The company knew as far back as 1994, Bryman contended, that the jack posed a serious risk of injury. He alleged that additional devices, such as a pressure relief valve, could reduce the danger. Yet Ferguson's 1995 model didn't provide that kind of protection to consumers, Bryman alleged.

At one point during the deposition, Bryman asked Hussaini whether product safety was the company's top concern. According to the transcript, Hussaini replied, "You know, it's not - well, it's - it's a priority. I wouldn't call it No. 1, but, you know, I have other tasks, so..."

Rally settled for $475,000.

Not only did Rally suffer from Hussaini's deposition, but so did Ta Ta Industrial Co., its Taiwanese subcontractor.

Bryman settled the case before deposing any Ta Ta officials, but he says they "may be even more culpable" than Rally's because they performed most of the manufacturing work.

Irrespective, the company did pay $1.7 million, far more than any other defendant.

'All in His Head'?

Ferguson once led a vigorous life as a motorcycle racer, mountain biker and karate instructor. Now he struggles to button his shirt and wash the dishes.

While no one doubts Ferguson suffers, Ta Ta attorneys believe much of the pain is psychological. They dispute his claim that reflex sympathetic dystrophy is a physical disability.

The medical community is split over the nature of the malady, Frederick says.

"It is poorly understood, frequently undiagnosed or misdiagnosed," he says. "Too many doctors think, 'It's all in his head.'"

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