SOUTHEAST TEXAS RECORD

MARSHALL -- Although the incident that is the basis of the lawsuit occurred at Tyler Junior College, U.S. District Judge T. John Ward denied the defendant's request to transfer the case to the federal court in Tyler.

Citing the case In re Volkswagen, Judge Ward wrote, "the defendants have not shown that the Tyler division is clearly more convenient than the plaintiff's chosen forum."

Gladewater resident John Henry Jackson filed the lawsuit after he fell from a construction basket that was 50 feet above the ground, while applying plaster to a building at Tyler Junior College.

John Henry and Vivian Jackson filed suit against GEHL Company, PEER Chain Company and RSC Equipment Rental Inc. on Feb. 9 in the Marshall Division of the Eastern District of Texas.

Jackson said that without warning the telescopic handler started to shake and the chain extending the boom malfunctioned.

According to court records, Jackson was dropped 30 feet causing serious injuries.

Jackson believes his accident was due to a defective and unreasonably dangerous telescopic handler and that a different design would have prevented his injuries.

Leased by RSC, the telescopic handler was manufactured by GEHL with a chain designed and manufactured by PEER.

GEHL Company filed the motion requesting the change in venue from the Marshall division to the Tyler division; both divisions are in the Eastern District of Texas and are approximately 60 miles apart.

The defendants maintain Tyler is a more convenient forum because it is the location of the incident, were the equipment was rented and the location of the entities involved in the construction activities.

In the opinion denying the motion to transfer, Judge Ward weighed several factors including public and private interests.

Citing the Fifth Circuit decision In Re Volkswagen, in which the court established a 100-mile threshold for the convenience or burden placed upon witnesses, Judge Ward said the defendants and their witnesses would have to travel from outside of Texas into either district "both divisions would be just as convenient."

Further, Judge Ward found the majority of the public and private interest factors to be neutral. Some of the factors considered include the relative ease of access to sources of proof, law familiarity, court congestion, and local interest.

"The Court rules that because the defendants have failed to show that the transferee venue is clearly more convenient than the venue chosen by the plaintiffs, the plaintiffs' choice of the Marshall division should be respected," stated Judge Ward within the opinion.

The plaintiffs argue that the telescopic handler and chain were defectively designed and unsafe for its intended purpose. A safer alternative design would have prevented the accident and was economically and technologically feasible through the "application of existing or reasonably achievable scientific knowledge," the plaintiffs state.

The complaint alleges the defendants "failed to give adequate warnings of the product's dangers that were known or by the application of reasonably developed human skill and foresight should have been known and/or failed to give adequate instructions and warnings to avoid such dangers."

Jackson alleges RSC, the rental company, is liable for failing to exercise ordinary care, improper and inadequate maintenance of the telescopic handler.

Defendant GEHL denies the plaintiffs' allegations and states "the equipment in question was being used for a purpose (lifting personnel) which was specifically prohibited by two warning decals prominently displayed on the equipment as well as additional warnings in the operator's manual."

Defendant RSC also denies the plaintiffs' allegations and states that the equipment it rented was not defective or unreasonably dangerous. Further, RSC argues that the accident was caused by the negligence of the plaintiff or a third party and "any alleged risk or hazard with regard to the use of the subject products was obvious to the user."

The plaintiffs are seeking damages for physical pain and mental anguish, lost wages, loss of earning capacity, physical and mental impairment, medical expenses, disfigurement, and loss of consortium, pre and post-judgment interest.

Longview attorneys Glenn A. Perry and J. Ryan Fowler of Sloan, Bagley, Hatcher and Perry Law Firm are representing the plaintiffs.

Andrew Joseph Sarne of Godwin Pappas Langley Ronquillo in Houston is representing RSC Equipment Rental Inc. Robert G Smith of Lorance & Thompson PC in Houston is representing Gehl.

Case No 2:2009cv00048