Man Loses Penis in Work Accident

On Behalf of | Feb 16, 2011 | Medical Malpractice

Edgardo Toucet Echevarria, 44, was injured Jan. 13, 2010, when a “peeler machine” cut off his penis in an industrial accident.

Per the lawsuit that was filed, “The surgically sharp steel blade sliced through Toucet’s pelvis cutting off his penis and testicles while virtually cutting his body in half.”

Mr. Echeverarria was working at Future Foam Carpet Cushion, and was injured after he removed a “foam core” with a steel blade that is used to cut blocks of carpeting foam. Mr Echeveria is suing, alleging negligence.

The lawsuit alleges that Mr. Echeverria was not trained in operating the machine and the maneuver he performed at the request of supervisors. The suit also claims employees had improperly removed a protective guard from the machine.

Most importantly, Echevarria alleges that Future Foam “had a duty not to behave in a manner that was virtually certain to result in death or injury to workers.”

Echevarria, an employee of Spartan Staffing, was a contract worker at Future Foam.

As reported by The Sun Sentinal, officials with the Occupational Safety and Health Administration cited Future Foam for 10 serious violations stemming from the January 2010 incident, spokesman Michael D’Aquino said.

OSHA, the federal agency charged with investigating workplace injuries and deaths, proposed fines of $42,500. Future Foam is contesting the citations.

Records show Spartan Staffing paid Echevarria $520 for ambulatory costs in 2010. He filed for additional worker’s compensation benefits, specifically physical therapy and attorney’s fees, in Feb. 10.

Most importantly, Echevarria alleges that Future Foam “had a duty not to behave in a manner that was virtually certain to result in death or injury to workers.”

“Future Foam was aware of prior instances in which workers had suffered injury or death due to insufficient, tampered with, or missing protection on this type of machine,” the lawsuit states. “[The company’s] maintenance and repair staff had failed and/or refused to properly upgrade the guarding.”

The lawsuit also includes a negligence claim against Baumer of America, the company that manufactures the peeler machine.

Work accidents in the State of Florida are governed by the Workers Compensation System and fill under Florida Stature section 440. The Workers Compensation system was set to provide immediate medical care and lost wages to the injured worker without having to prove negligence or fault. In reality it does neither very well. In exchange for this supposed immediate medical care and lost wages, workers forfeit the right to sue their employer in Negligence, and thus the ability to claim Pain and Suffering Damages. However, Florida Statute 440.11, creates a limited exception.

Florida Statute 440.11(1)(b) states:

When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:

1. The employer deliberately intended to injure the employee; or

2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

As evidenced by the above language, this is a tall, but not insurmountable hurdle to jump. Hence the language in the lawsuit, “had a duty not to behave in a manner that was virtually certain to result in death or injury to workers,” will be the key element in the case. If proven, Mr. Echevarria will be able to claim those damages that are are available in Negligence, but not in Workers Compensation.

Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.