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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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` Case No. 20-1293-DDC-TJJ
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`BRIAN MILLER,
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` Plaintiff,
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` v.
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`CNH INDUSTRIAL AMERICA LLC
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` Defendant.
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`FIRST AMENDED COMPLAINT
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`The Parties
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`1.
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`Plaintiff Brian Miller is an adult and is domiciled in Reno County, Kansas. He is a
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`dairy farmer and was 31 years old when he was severely injured by Defendant’s product.
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`2.
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`Brian is the husband of Amanda Miller and just before his injury, the two of them
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`had recently completed all but the final class for foster care certification. In addition to becoming
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`foster/adoptive parents, they also had hoped to have their own children naturally.
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`3.
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`Defendant CNH Industrial America LLC (hereinafter “CNH”) is a Delaware
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`limited liability corporation whose sole member is Case New Holland Industrial, Inc., which is a
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`Delaware corporation with its principal place of business in Racine, Wisconsin. CNH designs,
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`manufactures, markets and sells farm machinery, including the New Holland T7.270
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`Autocommand tractor. CNH does business in Kansas.
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`Jurisdiction/Venue
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`4.
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`This Court has original jurisdiction of this matter pursuant to 28 U.S.C. § 1332,
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`diversity citizenship. The Plaintiff is domiciled in and a citizen of Kansas. The Defendant is a
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`limited liability company whose sole member is Case New Holland Industrial, Inc. which is a
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 2 of 12
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`citizen of the state where it is incorporated and where it has its principal place of business, neither
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`of which is Kansas. The amount in controversy exceeds $75,000.
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`5.
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`The court has personal jurisdiction over the Defendant because it conducts business
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`in Kansas and its product caused injury in Kansas.
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`6.
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`Venue is proper in Kansas because Kansas is the judicial district in which a
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`substantial portion of the events or omissions giving rise to the claim occurred and also because
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`Defendant is a corporation subject to the court’s personal jurisdiction in Kansas.
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`Purchase of New Holland Tractor and Receipt of Manual
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`7.
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`Plaintiff and his father operate a dairy farm. Plaintiff’s father’s corporation
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`purchased a previously owned 2011-12 New Holland T7.270 Autocommand tractor, tractor
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`number ZBBZ 16664, from Agri-Center in Reno County, Kansas for $132,557 on December 31,
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`2015. The tractor was purchased to be used in their dairy operation. Concurrent with the purchase,
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`the Millers were provided a manual drafted by Defendant, which Plaintiff utilized in operating the
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`tractor.
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`8.
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`The New Holland T7.270 manual states at page 2-78: “EPB [electronic park brake]
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`will automatically engage at key-off or if the operator leaves the seat.” As evidenced from the
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`events described below, this is untrue.
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 3 of 12
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`9.
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`The New Holland T7.270 manual states at page 2-79, second bullet point: “The
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`park brake is automatically engaged in the following situation…The operator leaves the seat for
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`more than five seconds.” As evidenced from the events described below, this is untrue.
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`10.
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`The New Holland T7.270 manual states at page 2-112: “If the operator leaves the
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`seat for more than 5 seconds with the engine running and without engaging the electronic park
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`brake (EPB), the transmission will not drive until the operator is re-seated and the clutch pedal has
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`been cycled (depress/release).” As evidenced from the events described below, this is untrue.
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`11.
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`The New Holland T7.270 tractor displays within the cab an illuminated “!” and “P”
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`icon and also emits an alert tone when the tractor is stationary and the operator leaves the seat for
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`more than five seconds. These signal to the operator that the EPB is applying. When the tractor is
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`stationary, the EPB does apply.
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`12.
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`The New Holland T7.270 tractor displays within the cab an illuminated “!” and “P”
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`icon and also emits an alert tone when the tractor is moving and the operator leaves the seat for
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`more than five seconds. These also signal to the operator that the EPB is applying. However, when
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`the tractor is moving, the EPB does not apply.
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`13. Whether the New Holland T7.270 tractor is stationary or moving, if the operator
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`leaves the seat, the dashboard and the audible tone communicate to the operator that the EPB is
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`applying. But the EPB only applies if the machine is not moving.
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 4 of 12
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` Tractor moving and operator out of seat Tractor in neutral and operator out of seat
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`14.
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`Prior to October 23, 2018, Brian Miller had, on many occasions, left the seat of the
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`tractor when it was stationary. When he did so, within the cab he saw the illuminated “!” and “P”
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`icons and heard the alert tone. These signals indicated that the EPB was applying and, in fact, it
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`did apply.
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`15.
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`On October 23, 2018, in Reno County, Kansas, Brian was operating the T7.270
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`tractor while pulling a CrustBuster, Model 4030 All Plant, DD 48 x 7.5 seed drill.
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`16.
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`17.
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`Brian was traveling at a speed less than 5 mph as he planted wheat.
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`At approximately 3:00 p.m., Brian saw a piece of debris in the field ahead of the
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`tractor/seed drill. As he did not want to run over the debris, he moved the hydrostat/throttle to the
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`zero or near-zero position and stood up out of the seat to move the debris.
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`18. Within the cab the “!” and “P” icons displayed and the alert tone sounded. Brian
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`heard these, as he had on previous occasions, and he understood them to signify the EPB was
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`applying, and Brian believed it would apply – bringing the tractor to a stop.
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`19.
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`Despite Brian’s expectation, and contrary to the manual, the EPB did not apply.
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`The transmission did not disengage and the tractor continued to move forward.
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`4
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 5 of 12
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`20. While standing in the field and looking for the debris, Brian was struck from behind
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`by the seed drill. As he fell to the ground, he grabbed the upper part of the drill’s frame and held
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`himself up as high as he could to avoid being run over by the steel discs that were cutting the earth
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`just behind him. Brian’s leg was wedged under the drill’s wheel, so he could not pull himself
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`above the drill. As the tractor continued forward, Brian literally held on as if his life depended on
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`it. The tractor and Brian continued this way for many seconds, if not well over a minute. Brian
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`clung desperately to the drill while being drug for over 100 yards as the tractor continued to move
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`forward without a driver in the cab.
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`21.
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`Ultimately, Brian lost his grip, was pulled under the machine, and run over by the
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`seed drill.
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`22.
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`After running over Brian, the New Holland T7.270 Autocommand tractor
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`continued on, completely unoccupied, through both the field where he had been planting and
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`another adjacent field, for approximately one-quarter of a mile.
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`Tracks showing continued movement of
`unoccupied tractor to tree row on horizon
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`5
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 6 of 12
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`Tree row where tractor ran for hours
`unoccupied
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`23.
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`The tractor only stopped when it struck the hedgerow one-quarter mile away from
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`where it ran over Brian. There, it continued to run for hours, digging large holes in the ground as
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`its tires spun and Brian lay injured in the field. The tractor stopped only when it was found that
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`night by a friend engaged in the search for Brian.
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`24.
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`Brian laid alone in the field gravely injured, but conscious for over six hours. He
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`tried to stand multiple times but was only able to stand up once, at which point the pain was so
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`unbearable that he briefly lost consciousness. In the hours that followed, Brian’s family became
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`worried and began a search. Brian’s father searched the field for Brian or the tractor and finally
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`found Brian after nightfall, but only on his second pass through the field. Brian was semi-conscious
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`6
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 7 of 12
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`at the time, and as he watched his father’s truck trace the field in the pitch black, he worried he
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`was about to be run over again.
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`Injuries/Medical Care
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`25.
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`EMS arrived at 9:33 p.m., and found Brian with blood on his lips, with labored
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`and rapid breathing, with no palpable pulse, with a blood pressure too low to be measured and
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`with an O2 saturation of only 80%, at most.
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`26.
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`A LifeSave Transport helicopter arrived and took Brian to Wesley Medical Center
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`in Wichita. Brian finally arrived at the hospital at 10:33 p.m., approximately 7 and ½ hours after
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`he was injured.
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`27.
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`Brian’s first hospitalization at Wesley lasted from October 23, 2018 to December
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`12, 2018--50 days. While there, he was diagnosed with the following injuries (as well as others
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`not listed here): bilateral rib fractures 3-7 on the right, bilateral rib fractures 2-7 on the left, bilateral
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`pneumothorax, acute kidney injury, left acetabular fracture, left superior and inferior pubic rami
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`fractures, anemia from acute blood loss, acute respiratory failure due to trauma, Grade 2 liver
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`laceration, small bowel contusion, small bowel obstruction with perforation x2, a deep pelvic
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`abscess, adult respiratory distress syndrome, and sepsis.
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`28.
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`During the initial hospitalization, Brian underwent several procedures, including:
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`left and right chest tube placements, nasal laceration repair, irrigation/drainage of right knee with
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`a traumatic arthrotomy with wound closure, closed reduction of the acetabular fracture, CT guided
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`abscess draining x3, exploratory laparotomy with small bowel repair, removal of succus and
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`creation of a loop ileostomy, bronchoscopy, intubation for ARDS, as well as placement of five
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`Jackson Pratt drains, one of which remained until well after his discharge from the Hospital.
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`7
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 8 of 12
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`29.
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`During Thanksgiving week, 2018, Brian was placed in a medical coma because of
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`his ARDS symptoms. As he was put to sleep, his wife Amanda and his family told him goodbye.
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`He was in a coma for three days.
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` 30. During the time he was in the hospital and throughout his recovery, his wife
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`Amanda seldom left his side, advocating for him with health care providers, encouraging him, and
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`abandoning her own needs to focus on him. A woman of strong faith, she suffered right along with
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`her husband.
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`31.
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`After his initial stint at Wesley, he was transferred to Hutchinson Regional Medical
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`Center where he underwent PT/OT during the holidays. He remained there from December 12
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`through December 28, 2018,
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`32.
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`Brian was discharged to a relative’s home that had been outfitted with handicap
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`accessibility on December 28, 2018. He was able to move to his parents’ home on February 16,
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`2019 and began a slow recovery.
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`8
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 9 of 12
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`33.
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`Brian suffered pain and was again hospitalized at Wesley Medical Center, from
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`June 4 to 9, 2019. In order to diagnose and correct what was causing his discomfort, he had an
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`exploratory laparotomy with segmental small bowel resection, drainage of pelvic abscess, revision
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`of loop ileostomy, ventral herniorrhaphy, and an appendectomy.
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`34.
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`Brian’s third hospitalization, also at Wesley Medical Center, lasted from September
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`13 to 15, 2019, during which time he had a loop ileostomy closure.
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`35.
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`Brian’s physicians will attest that because of his extensive injuries, he has
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`permanent lung damage and other permanent injuries that will continue to cause him to incur
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`medical expenses and to limit his activities. His lungs have been a particular concern during the
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`pandemic.
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`36.
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`37.
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`To-date, Brian’s medical expenses total nearly $1.7 million.
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`Brian has endured great conscious pain and suffering, incurred significant medical
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`expenses and has been unable to fulfill normal marital functions during his injury and recovery.
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`He will incur medical expenses and experience pain and risk into the future. He has suffered pain
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`and suffering, disability, scarring, disfigurement, and mental anguish.
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`38.
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`Throughout his injury and recovery, his wife Amanda has suffered loss of
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`companionship and assistance and familial contribution of her husband, his household or domestic
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`services, assistance, comfort and the ability to socialize with her husband Brian. His injury and
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`recovery delayed their plans to start their family and to become foster parents.
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`39.
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`40.
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`Brian hereby makes a consortium claim on behalf of his wife Amanda.
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`By misleading Brian with its defective product and warnings, Defendant acted
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`toward the plaintiff with willful and wanton conduct. It knew that serious harm would arise from
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`the defendant’s misconduct; it was aware of the likelihood of injury from a runaway tractor and
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`9
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 10 of 12
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`its misleading warnings and instructions. Brian should be awarded punitive damages in order to
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`deter Defendant from selling, designing and manufacturing this defective product and to motivate
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`Defendant to correct the defects in its product.
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`Count 1—Negligence
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`41.
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`Defendant owed a duty of reasonable care to Brian and breached that duty, which
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`caused Brian’s catastrophic injuries. Defendant breached its duties to Brian in all of the ways
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`described in paragraphs 42-46 below.
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`42.
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`Designing and manufacturing an inherently unsafe and unreasonably dangerous
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`tractor that would, while unoccupied, continue to move forward until its forward progress was
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`stopped by an immovable object or the tractor ran out of fuel. Among other reasons, the tractor
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`was unreasonably dangerous because it was not equipped with an Operator Presence Sensor Switch
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`(aka “dead man’s switch”) that functioned when it was moving. Also, Defendant designed and
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`manufactured a tractor in which the park brake did not automatically apply and the transmission
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`did not automatically disengage when the operator left the seat if the tractor was moving.
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`43.
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`Designing and manufacturing an inherently unsafe and unreasonably dangerous
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`tractor by providing defective warnings. When the operator leaves the seat, the same icons display
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`on the dash and the same tone emits within the cab to indicate the EPB is applying whether the
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`tractor is stationary or moving forward. Though the lights and tone would indicate otherwise, the
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`EPB applies only when the tractor is stationary. Brian was misled by these warnings and by the
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`display of the tractor speed as depicted in a bar graph form.
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`44.
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`Designing and manufacturing an inherently unsafe and unreasonably dangerous
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`tractor by stating within the manual that the EPB applies and/or the transmission disengages when
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`the operator leaves the seat when, in fact, neither occurs when the tractor is moving forward.
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`10
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 11 of 12
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`45.
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`Designing and manufacturing an inherently unsafe and unreasonably dangerous
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`tractor by improperly and misleadingly warning the operator and/or failing to warn or adequately
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`warn the operator that the EPB would not apply and/or the transmission would not disengage when
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`the driver left the seat if the tractor was moving.
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`46.
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`Not acting as a reasonably prudent manufacturer and seller would have acted as to
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`the design and warning defects as described above in light of the fact there existed alternative safer
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`and feasible designs and warnings which were used at the time by not only other manufacturers of
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`similar machinery, but by Defendant on other agricultural machines, including some tractors and
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`its skid steer machines.
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`47.
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`All of the above-stated product defects existed at both the time of manufacture and
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`sale (original and resale) of the New Holland Autocommand T7.270 tractor.
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`WHEREFORE, plaintiff requests an award of damages in excess of $75,000, for punitive
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`damages and attorney fees as the court may consider just and proper and for his costs.
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`Count II—Strict Liability
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`48.
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`Defendants are strictly liable to Brian because of defects described above, which
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`existed at the time of manufacture and sale (original and resale) of the New Holland Autocommand
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`T7.270 tractor and because these defects caused serious injuries to Brian.
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`WHEREFORE, plaintiff requests an award of damages in excess of $75,000, for punitive
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`damages and attorney fees as the court may consider just and proper and for his costs.
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`Count III—Breach of Implied Warranty of Merchantability
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`49.
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`Defendants are liable to Brian for breaching their warranty that the New Holland
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`T7.270 tractor did not have design or warning defects and was fit for the purpose for which it was
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`11
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`Case 6:20-cv-01293-DDC-TJJ Document 4 Filed 11/06/20 Page 12 of 12
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`sold when, in fact, there were the above-described design and warning defects, and the tractor was
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`not fit for the purposes for which it was sold, all causing injuries to Brian.
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`WHEREFORE, plaintiff requests an award of damages in excess of $75,000, for punitive
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`damages and attorney fees as the court may consider just and proper and for his costs.
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`Respectfully Submitted,
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`/s/ Gaye B. Tibbets
`Gaye B. Tibbets, #13240
`Brad J. LaForge, #20323
`Don D. Gribble, # 12163
`HITE, FANNING & HONEYMAN L.L.P.
`100 N. Broadway, Ste. 950
`Wichita, Kansas 67202
`Tel: (316) 265-7741
`Fax: (316) 267-7803
`Email: tibbets@hitefanning.com
`Email: laforge@hitefanning.com
`Email: gribble@hitefanning.com
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`REQUEST FOR JURY TRIAL
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`Plaintiff hereby requests a trial by jury on claims triable to a jury.
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`/s/ Gaye B. Tibbets
`Gaye B. Tibbets, #13240
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`DESIGNATION OF PLACE OF TRIAL
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`Plaintiff hereby designates the United States District Court for the District of Kansas at
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`Wichita, Kansas, as the place of trial.
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`/s/ Gaye B. Tibbets
`Gaye B. Tibbets, #13240
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`12
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