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Appeals court upholds $8 million verdict for lost arm

An appeals court has unanimously upheld a damage award of nearly $8 million for a woman who lost her right arm in an accident with a post-hole digger in the Town of Cambria in 2004.

Jessica Bowers, now 23, is entitled to the money for the injury that occurred in her late stepfather’s backyard on Upper Mountain Road, the Appellate Division of State Supreme Court ruled last week.

Bowers was 16 when the pocket of her coat was caught on a bolt protruding from the drive shaft of the auger-like digger as she tried to straighten it before her stepfather, Garry S. Hoover, dug a hole.

The bolt was supposed to have been covered by a plastic safety shield, but the shield had long since been wrecked in normal use of the digger and had been removed by the digger’s owner, Peter A. Smith, who bought it in 1996.

Smith, owner of Niagara Landing Wine Cellars in Cambria, allowed Hoover, who was then one of his employees, to borrow the digger Oct. 2, 2004.

In a five-week trial that ended April 7, 2011, a six-member jury unanimously awarded Bowers $8.8 million in damages against Case New Holland, formerly Ford New Holland, the manufacturer of the digger; SMC Corp., the designer of components for the machine; Hoover’s estate; and Niagara Frontier Equipment Sales, the dealer that sold it to Smith.

Smith and two other defendants settled with Bowers early in the trial.

GKN Walterscheid, which made the plastic shield, and NEAPCO, the supplier of the drive line, agreed to pay Bowers a total of $4.6 million, said Laraine Kelley of the Lipsitz Green law firm, which represented Bowers.

On various legal technicalities, State Supreme Court Justice Richard C. Kloch Sr. reduced the charges against the defendants hit by the jury verdict to slightly over $3.3 million, but Kelley said the $4.6 million in settlements brings the total to over $7.9 million.

However, John A. Collins, the Lipsitz Green lawyer who handled the appeal, said Bowers won’t be paid until the case is definitely over.

Collins said that he’s been told by attorneys for the defendants that they would likely request that the state Court of Appeals take the case, although there is no automatic right to appeal because the Appellate Division ruling was unanimous. None of the defense attorneys returned calls to comment last week.

In September 2011, Kloch ordered the defendants to buy annuities to pay Bowers in monthly installments, after Case New Holland pays up-front lump sums totaling more than $676,000.

The annuities for seven different causes of liability will last between two and 59 years, meaning that Bowers will still be receiving monthly checks in her 80s.

“She has obtained her real estate license and is proceeding in that direction,” Kelley said.