Travis M. Brennan, lawyer at Berman & Simmons

Negligence on Blueberry Field Leads to $729,000 Verdict

On October 2016, after a five-day bench trial, the Penobscot Superior Court awarded our client Michael Lund approximately $729,000 for serious and permanent injuries he experienced as a result of the Defendant’s negligence. The Court’s decision and award are the culmination of over four-and-a-half years of time and resources. This article reflects on some of the fundamental issues that we had to navigate to prevail in this case.

Blueberry Burns in Machias
In March 2012, Defendant M.A. Whitney & Son conducted several blueberry burns in the Machias area. Blueberry burns are used routinely to prune blueberry plants. During a blueberry burn, a tractor pulls a burning machine across the field, while the machine shoots flames onto the plants. A crew assists with the burn, monitoring the fire to keep it contained.

On the morning of March 22, 2012, M.A. Whitney was shorthanded for one of their burns, and hired Michael Lund to assist for the day. Michael, age 33, had no experience with blueberry burns. M.A. Whitney brought Michael to the blueberry fields, provided him with a pair of insulated coveralls to wear over his clothes, and assigned him the job of walking behind a burning machine on an unseasonable 85F day.

Within hours of starting the burn, Michael became disoriented and his behavior became erratic. He was rushed to a nearby hospital where his core body temperature was measured at 108F. Michael was unconscious and on the verge of death. A breathing tube was inserted and he was transported by helicopter to a hospital in Bangor for treatment of heat stroke. Michael spent four days in the intensive care unit. Miraculously he survived, but his near-fatal heat stroke caused permanent injuries to his legs and right shoulder.

Overcoming the Workers’ Compensation Bar
As a threshold matter, we first had to analyze whether Michael could even bring a negligence claim against his employer for the injuries he experienced. Pursuant to Maine’s workers’ compensation statutes, every employer that purchases workers’ compensation insurance is shielded from civil liability. In other words, if an employer has purchased workers’ compensation insurance, an employee cannot bring a negligence claim against the employer for injuries incurred on the job. Typically, the only remedy for an employee injured at work is workers’ compensation benefits. Unfortunately, workers’ compensation benefits do not provide for the employee’s pain and suffering, mental anguish, or loss of enjoyment of life.

Initially, it appeared that Michael’s claim would be barred; we determined that M.A. Whitney did not have workers’ compensation insurance, because the company fell within an exception in the law for agricultural employers.

Severity of Michael’s Injuries
Determining the full extent and severity of Michael’s injuries represented another important consideration in this case. There was little dispute that this incident caused Michael’s acute injuries, such as respiratory failure, unconsciousness, and dangerously high body temperature. The insurance company for the Defendant initially argued that Michael’s continued leg and shoulder pain were unrelated to the burn incident, and that his continued complaints of leg and shoulder pain represented malingering.

In order to address this issue, we had to fully understand Michael’s physical status, from the medical course of treatment he received in the hospital, to the treatment by his primary care provider, physical therapists, physiatrist, and orthopedic surgeon. After reviewing Michael’s course of treatment and speaking in person with his medical providers, the causal link between the burn incident and Michael’s lasting injuries became clear. Establishing this causal link was instrumental in ensuring that Michael received full and fair compensation for his injuries.

Selection of Appropriate Experts and Trial Technology
The selection of world-class experts was another critical step to develop the leverage we needed to prevail in this case. To establish M.A. Whitney’s negligence, we retained an occupational workplace safety expert who had worked for OSHA for over 29 years and who taught undergraduate- and graduate-level courses on occupational health safety. Our liability expert was able to articulate the reasonable and common sense steps that the Defendant should have taken to protect Michael.

To substantiate Michael’s damages from his injuries, we retained a doctor who was a medical school professor and board-certified in critical care medicine. We also retained a physical therapist who conducted a functional capacity examination; a vocational rehabilitation expert; and a Ph.D. economist who calculated the value of Michael’s lost wages. Our experts testified live at trial, and were critical to our goals of highlighting M.A. Whitney’s negligence and articulating the full extent of Michael’s injuries and damages.

In addition, we used advanced trial technology to present Michael’s case as powerfully and persuasively as possible. Our presentation of evidence included the use of electronic trial presentation software, enabling us to quickly and efficiently play video excerpts from witnesses’ prior deposition testimony. Whenever a witness’s testimony was inconsistent with his or her prior deposition testimony, we were able to play the witness’s video deposition and impeach the witness. This was a powerful tool in undermining the credibility of the Defendant’s witnesses.

Successful Outcome
Ultimately, the success in this case hinged upon the tireless work of several attorneys and staff members at Berman & Simmons, including my collaboration with James O’Connell, who graciously agreed to try the case with me. The legal experience, hard work, and financial resources that were brought to bear in this case were instrumental to its successful outcome.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.