Posted on Sun, Apr. 13, 2008

With a 2½-inch nail deep in his chest, construction worker Manuel Murillo slid into a pickup, bracing himself for a desperate seven-mile drive down a snowy Sierra road.

His friend and co-worker Salvador Cardenas was driving. When they finally got cell phone reception, Murillo, 30, called his wife in nearby Portola to tell her there had been an accident. He

had shot himself with a nail gun while working on a mountain cabin. And he was going to die.

"I love you," he said, before hanging up.

Murillo had been struck down by a popular tool of his trade -- the air-powered nail gun -- equipped with a mechanism that allowed automatic firing.

As the tool's popularity surged during the building boom of the 2000s, a Sacramento Bee investigation found, nail gun injuries also took off, despite decades of warnings from researchers and doctors that the guns are dangerous, especially in the automatic mode known as "contact trip."

Driven by compressed air, the brawniest nail guns can blast 30 nails a minute that travel as far as 490 feet per second, qualifying the nails as low-velocity missiles. In contact trip mode, with one pull of the trigger, they fire those missiles whenever the muzzle makes contact with a surface -- including heads, hands, eyes and chests.

But the tool's hazards largely have been unaddressed by regulatory agencies. Inspectors at Cal-OSHA, charged with protecting the state's workers, visit a fraction of work sites to see whether nail guns are being used safely. Typically, the agency investigates after an incident -- as it did with Murillo.

Cal-OSHA's efforts to promote safer firing systems have been derailed. Meanwhile, the federal Consumer Product Safety Commission has done little, even as its staff documented the growing injury toll among nonprofessionals.

Novice construction workers and journeymen carpenters, home do-it-yourselfers and even passers-by are among those getting hurt.

California companies reported 1,890 nail gun injuries leading to missed workdays from 2003 to 2006, according to the U.S. Bureau of Labor Statistics. That tally covers only a small portion of those injured, in part because undercounting is widespread, according to a 2006 report by the state Legislative Analyst's Office.

A more comprehensive national estimate found that 42,000 people with nail gun injuries -- more than 100 a day -- show up at U.S. hospital emergency departments annually. Others are treated at clinics or at home.

Treating the wounds costs the United States at least $338 million a year in emergency medical care, rehabilitation and workers compensation, according to a Consumer Product Safety Commission estimate. That's 10 times the cost of treating jigsaw, power sander or band saw injuries, and double the cost of treating injuries from handsaws.

Who gets hurt

Injury victims and their relatives accuse manufacturers of sacrificing safety to boost sales of the guns and the nails that go with them, which load into magazines or come in coils. The faster the tool, the greater its appeal -- and the more nails it uses.

That allegation is among those made by Murillo's widow, Brenda, who is raising the couple's three children.

Her wrongful death lawsuit against Hitachi-Koki U.S.A. accuses the toolmaker of selling Murillo a finishing nail gun that was negligently designed, defective and of "dangerous character and condition," according to a complaint filed in July in Los Angeles Superior Court.

Hitachi Vice President Benjie Hopkins declined to respond, citing the pending litigation.

On April 19, 2006, Murillo was installing pine paneling inside a remote vacation home owned by Michael James Flynn, a Rancho Santa Fe attorney. Cardenas was helping and Murillo's oldest son, Carlos, 10, had tagged along.

Working on scaffolding seven feet off the ground, Murillo and Cardenas shared the Hitachi gun. At one point, Cardenas recalled during a tearful interview, he heard the tool fire and heard Murillo yell. When he turned to look, Cardenas said, Murillo was grabbing his chest.

Murillo had bought the gun a few weeks before at a hardware store, according to a Plumas County Sheriff's Department report. It had two firing modes -- contact trip and semiautomatic single shot -- with a toggle switch between the two.

The gun was switched to contact trip, according to the state investigation into his death.

The gun was hanging from the end of the scaffolding, at chest level. Cardenas said he thinks that as Murillo turned sideways to pass the gun, he accidentally bumped into it.

Rushing down the unplowed Plumas County road, Cardenas said he temporarily lost control and hit a pine tree -- then recovered and continued.

"I wanna hear you breathe," he told Murillo, whose eyes rolled back in his head.

Finally, at an intersection, they met the ambulance called by Murillo's wife. Murillo stepped out of the truck -- and collapsed.

By the time paramedics loaded him into the ambulance, he had stopped breathing. When the ambulance reached Eastern Plumas District Hospital, Murillo was blue.

Nurses revived him, getting a faint pulse. But during surgery to remove the nail from a coronary artery, Murillo's heart stopped again.

For the next 45 minutes, doctors worked to save him. In the tiny hospital's waiting room, Murillo's wife, sister, mother and other relatives waited for news.

When Brenda Murillo learned that the white sheet had been pulled over her husband's body, a Plumas County sheriff's report states, she was so overwhelmed she could not speak to police officers.

Police notified Flynn, the owner of the cabin, who flew up the next day. A friend of Murillo and godfather to one of his children, Flynn gave the eulogy at Murillo's funeral, attended by more than 300 people.

"It was an unspeakable tragedy," Flynn said. "He was literally one of the best human beings and the hardest-working people I ever met."

Contact guns targeted

Emergency room physicians, forensic engineers, attorneys and occupational safety researchers believe that a majority of nail gun injuries could be prevented by limiting the guns to a one-at-a-time sequential firing system.

Ed Jazlowiecki, a Connecticut attorney, won a $3.4 million jury verdict in December against nail gun manufacturer Stanley Bostitch Inc. on behalf of a man partially paralyzed after being shot in the head with a nail that had bounced off metal after being fired by a contact trip gun.

Jazlowiecki accused Bostitch of continuing to sell contact guns knowing that sequential guns -- which it also sells -- are safer and despite being hit with 25 lawsuits over two decades from nail gun users who suffered brain injuries. Bostitch acknowledges settling 20 of those lawsuits out of court.

"They're taking the same approach as Ford did with the Pinto," Jazlowiecki said, referring to Ford's reluctance to retire the 1970s-era car amid evidence its gas tanks exploded when hit from behind.

"They set aside money for lawsuit payouts," he said of Bostitch. "They make so much money from the nails."

"Nobody at this company thinks that way," countered Ted Morris, the assistant general counsel for Stanley Bostitch. The company is appealing the ruling in Jazlowiecki's lawsuit, saying the worker misused the tool.

Morris acknowledged that sequential guns have a safety advantage over contact trip guns and said his company would comply if contact guns were outlawed. But, for now, most customers prefer them, Morris said.

"We are not required to offer only the safer alternative under product liability law," he said. "The Pinto had a defect. There is nothing defective about Bostitch nailers."

Mark Ezra and the late H. Boulter Kelsey Jr., a team of St. Louis-based forensic engineers, studied nail guns for years. Their research concluded that the contact trip feature and the trigger's location on most nail guns contribute to serious injuries.

Despite nail gun makers' warnings not to carry the tool by the trigger, many users do just that -- and it's easy to see why, Kelsey said in an article published in the Journal of the National Academy of Forensic Engineers.

"The center of gravity of the tool is just above the trigger," he wrote. "This configuration of the handle and trigger vis-a-vis the center of gravity encourage the user to maintain the holding grip on the tool with the same fingers that are used to actuate the trigger."

Ban is urged

Hester Lipscomb, an occupational epidemiologist at Duke University in Durham, N.C., has spent a decade studying nail gun injuries.

"When people get shot, the cases are portrayed in the media as bizarre accidents," Lipscomb said. "I never call nail gun injuries 'accidents.' That implies they couldn't be prevented and that's not true."

Her research has found that half to two-thirds of injuries would not have happened with sequential guns.

In her published research and at recent construction safety conferences, Lipscomb has urged federal officials to ban contact guns using the federal Occupational Safety and Health Act's "general duty clause." It says employers have a duty to provide a workplace free of known hazards that may cause death or serious injury.

Such a ban likely would have prevented the injury of California Highway Patrol officer Ronald Harris Jr., who became one of an estimated 550 bystanders injured annually by nail guns.

Driving home from the gym May 16, Harris was hit in the eye by a stray nail that had traveled 75 feet from a house being built on the other side of the Riverside County road -- and through his open car window.

Two framers for Quality Structures Inc. were assembling a wall frame on the second floor of the Temecula house. Both had their nail guns in contact mode, according to a Cal-OSHA investigation report.

State investigators surmised that Harris likely was hit by a nail from a double fire, in which the device kicked back and fired a second nail, the state report said.

After being knocked sideways into his passenger seat, Harris pulled over to call for help. At first, he was so dazed he could not remember the code to unlock his cell phone.

"You got hit by a nail, you said?" one police dispatcher asked incredulously, as heard in a tape of his 911 call.

"I got a freaking shot to the head," an agitated Harris told a second dispatcher.

Today, Harris, 36, has a damaged left pupil and has had to adjust his work schedule to avoid the midday sun.

"On a bright sunny day, it gives me a washout," he said. Harris' doctor has ordered glaucoma tests every six months after he turns 40. Harris has hired a lawyer.

Quality Structures, the framing subcontractor, denies responsibility for the incident.

"I consider myself very fortunate that I'm not permanently disabled," Harris said.

He was fortunate. In 1988, Eugene Doran, 40, of Andover, Md., became a quadriplegic while getting a haircut. A carpenter in a neighboring store had fired a 3-inch nail through a wall, severing Doran's spine.

He received a settlement of $15.35 million from nail gun manufacturers Amca International Inc. and Desa Industries Inc., as well as from the company that had rented the carpenter the gun, and its franchisee.

Statistics elusive

Nobody in California collects comprehensive data about nail gun injuries, a void that has favored those contractors and nail gun manufacturers who adamantly oppose government efforts to regulate firing systems -- and even have lobbied against calling it a gun.

Injury data from the federal Bureau of Labor Statistics -- based solely on private employers' self-reporting from 2002 to 2006 -- found California annually had 310 to 540 nail gun injuries causing missed work, said labor bureau spokesman Shane Stephens.

But if injuries are not recorded in a company's injury and illness log, they don't make it into the bureau's data. And, if a company has fewer than 10 employees, the bureau does not count their injuries.

It's as though they never happened.

Nationally, the labor bureau survey identified 2,970 to 3,810 nail gun injuries a year from 2002 to 2006. The Sacramento Bee identified four nail gun misfire deaths in recent years in addition to Murillo's -- in Florida, Massachusetts, Maryland and in Idaho, where Roseville-born Damon Huhtala was killed in 2007 after tripping and firing a nail into his brain.

Lipscomb, using data from the federal Consumer Product Safety Commission's National Electronic Injury Surveillance System, sets the number of nonfatal injuries far higher.

In an April 2007 report for the Centers for Disease Control and Prevention, Lipscomb estimated that nail gun injuries seen by hospital emergency departments had increased more than threefold in a decade, from about 12,000 in 1995 to about 42,000 in 2005.

Looking at only the nonprofessionals in that group, the trend was similar, with emergency room visits rising from 4,200 in 1991 to 14,800 in 2005.

Lipscomb said the data highlight the need not only for safer firing control systems and better training, but also for improved consumer safety information at tool rental companies and hardware stores.

Novices vulnerable

Many of the California injury cases The Sacramento Bee reviewed involved novice, nonunion carpenters or other new hires who received little training.

On his first day with Enterprise Builders in Rancho Cucamonga, Miguel Ramirez, then 20, blasted a nail off a metal bracket and into his skull in March 2005. Cal-OSHA inspectors found that Ramirez hadn't been given a face shield at the San Bernardino County job site.

After Ramirez started to faint with "a hole in his face," co-workers rushed him to Loma Linda Medical Center, where the nail was removed.

Three days later, Ramirez couldn't recognize his brother. Five months later, because of his head injury, he remembered little about the incident, state documents show.

Lipscomb's research confirmed that rookie nail gun users face a high risk. When she studied nail gun use by 772 apprentice carpenters in 2005, 347 of them, or 44.5 percent, reported injuries.

However, after adjusting for experience and training, Lipscomb found that contact trip users had an injury rate twice as high as those working with guns in sequential mode.

Contractors argue that many nail gun injuries are minor. Lipscomb agreed that most are categorized as minor, but added: "Ask a guy who nailed two fingers together if it is minor."

In addition, seemingly minor puncture wounds may turn out to be anything but.

Fairfield carpenter Jack Sperduto fired a nail into his hand at Travis Air Force Base in 1998. The injury caused nerve damage and pain so excruciating that years of treatments, surgeries and drugs didn't relieve it, leaving his hand useless and his head filled with suicidal thoughts, medical reports show.

Sperduto sued Senco, the manufacturer, and won $960,000.

Pressure to produce

Production demands have contributed to the rise in injuries, according to a 2006 report by the Cal-OSHA Standards Board -- particularly where the state's housing boom was most intense.

Some construction workers are jury-rigging the guns so they fire faster by removing an easily accessible safety spring. Rental outlets say guns occasionally are returned minus the spring.

Isidro Mejia Lopez, then 39 and working on a house in Palmdale, made newscasts around the world in 2004 after a co-worker fired six large nails into his face, neck and skull.

Lopez was shot when he got tangled up with another worker and, as the two fell, Lopez hit the co-worker's nail gun muzzle in midair.

Cal-OSHA later determined that the co-worker had removed his tool's safety spring, allowing it to pump out six nails. Lopez survived, but even after extensive rehabilitation, his speech is slurred.

Some safety-savvy workers say they have come under pressure to adopt dangerous work methods.

Edward Ramos was a carpenter with Ralph Rocca Construction Inc. in Apple Valley in June 2005 when he said his boss directed him to use his nail gun to attach metal hurricane straps to wood trusses, a state investigation report says.

Ramos told crew leader Randy Cannon that the smaller palm hammer was better for the job because big nail guns are awkward in tight angles. Cannon said the palm hammer was "in the shop," Cal-OSHA documents state.

Ramos repeatedly said he didn't want to use the nail gun, the report says. He had no safety glasses or other eye protection. Cannon responded that he had "faith that (Ramos) could get it done using the nail gun." A short time later, Ramos felt something slam into his face. His right eye started bleeding.

A co-worker drove Ramos to Victor Valley Hospital. From there, he was airlifted to Loma Linda University Hospital, a nail lodged in his brain.