In a recent investigative report, NBC News debunked right-wing media's insistence that lawsuits brought against gas can companies whose products explode were “frivolous.” As reported by NBC, its findings not only led the federal Consumer Product Safety Commission to recommend that the industry remedy the gas can defect at the heart of the lawsuits, but also prompted co-defendant Wal-Mart to propose a $25 million settlement.
Last year, Blitz USA, the number one manufacturer of red gas cans who refused to put flame arrestors in their products' spouts, closed its doors. Flame arrestors are a commonly used device that is "almost two hundred years" old and inexpensively prevents gas vapor from igniting the contents of the can.
Right-wing media, however, blamed multiple "frivolous" lawsuits for Blitz USA's decision to cease operations. Despite the fact that the plaintiffs in the cases had been severely burned or killed after gas cans exploded when the spout was close to a heat source, The Wall Street Journal compared their lawyers to “19th century marauders” and characterized the gas can companies as “victims” of “modern robbery” by the trial bar. From the WSJ's editorial:
Like 19th century marauders, the trial bar attacks any business it thinks will cough up money in its raids. The latest victims are the people who make those red plastic gasoline cans.
Until recently, Blitz USA -- the nation's No. 1 consumer gasoline-can producer, based in Miami, Oklahoma -- was doing fine. It's a commoditized, low-margin business, but it's steady. Sales normally pick up when hurricane season begins and people start storing fuel for back-up generators and the like.
Blitz USA has controlled some 75% of the U.S. market for plastic gas cans, employing 117 people in that business, and had revenues of $60 million in 2011. The Consumer Product Safety Commission has never deemed Blitz's products unsafe.
Then the trial attorneys hit on an idea with trial-lawyer logic: They could sue Blitz when someone poured gas on a fire (for instance, to rekindle the flame) and the can exploded, alleging that the explosion is the result of defects in the can's design as opposed to simple misuse of the product. Plaintiffs were burned, and in some cases people died.
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The Atlantic hurricane season started June 1, and Blitz estimates that demand for plastic gas cans rises 30% about then. If consumers can't find the familiar red plastic can, fuel will have to be carried around in heavy metal containers or ad-hoc in dangerous alternatives, such as coolers.
Trial lawyers remain a primary funding source for the Democratic Party, but stories like this cry out for a bipartisan counter-offensive against these destructive raids that loot law-abiding companies merely because our insane tort laws make them vulnerable.
The WSJ has a long record of opposing “frivolous lawsuits,” so it's no surprise it would ignore the evidence on gas can explosions and side with the corporation. But the WSJ wasn't alone in its criticism of the gas can lawsuits. International Business Times went further than the WSJ, blaming victims for “product misuse and lawsuit abuse,” and positively cited a spokesperson from the Institute for Legal Reform (ILR) -- a partner of the pro-business lobbying group U.S. Chamber of Commerce.
Another affiliate of the Chamber -- a website called “Faces of Lawsuit Abuse” -- felt so strongly that the gas can explosion lawsuits were “frivolous” that it produced an 18-minute video about the plight of Blitz USA, including anonymous “non-plaintiff internet footage” of individuals pouring gas on bonfires. The video blamed victims of gas can explosions for putting Blitz out of business without sufficient explanation of the alleged product defect, which plaintiffs claim makes the gas cans dangerous even in non-open-flame situations, such as pouring fuel into chainsaws and lawnmowers. In the Chamber-produced video, Blitz attorney David Jones insisted that “the allegation that a flame arrestor would somehow improve the safety of the product is just patently false” and that Blitz's internal review indicated that “incorporation of a flame arrester would actually result in more injuries” because users “would have a false sense of security.”
But as the NBC News report points out, the lawsuits represent people who have been seriously and unexpectedly injured in a way that the defendants could have prevented. In the NBC test that prompted both the Consumer Product Safety Commission and Wal-Mart to quickly react, the fail rate for the gas cans in the conditions alleged by the lawsuits was 100 percent. One attorney who has represented victims calls the gas cans “bombs ... pure and simple” and the lawsuits claim that Blitz and Wal-Mart, the largest retailer of these products, "knowingly sold a defective product that could explode and produce catastrophic and sometimes fatal injuries, and refused to add a safety device, known as a flame arrester, to make the cans safer." The arrester safety fix apparently costs just 4 cents per can.
The gas can industry responded to NBC's report by dismissing the “laboratory environment” results. From the Today show transcript:
REPORTER LISA MYERS: Government data requested by NBC News found reports that 11 have died and 1200 have gone to emergency rooms since 1998 because of gas can explosions. For years the industry denied these explosions could even happen. Then in 2010, at a university combustion lab in Massachusetts, an industry group tested gas cans. NBC News obtained the video. It shows the cans do explode under certain limited conditions. We wanted to show you how these cans can fail. So we came to the same lab used by the industry group for its tests and asked the scientists here to perform the same tests for us...All five cans tested exploded.
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WILLIAM MOSCHELLA, ATTORNEY FOR PORTABLE FUEL CONTAINER MANUFACTURERS ASSOCIATION: There are billions of uses every year of the portable gas can with no adverse result.
MYERS: A lawyer for the gas can industry says the testing doesn't prove the cans are unsafe.
MOSCHELLA: This is really only occurring that -- we can -- that I've ever seen in a laboratory environment.
MYERS: You're claiming that in all of these cases the gas can did not explode?
MOSCHELLA: What I'm saying is we haven't seen a case where that has been demonstrated.
MYERS: He also argues that many incidents involve consumers misusing the can. Like pouring gasoline on a fire or into a warm engine as Melvin did. Some scientists argue that adding a screen or mesh called a flame arrester can make cans safer by keeping the flame from entering the can as this demonstration shows. Some metal safety cans have flame arresters. So does this charcoal lighter fluid and some bottles of rum.
Why has the industry not put flame arresters on the portable gas cans?
MOSCHELLA: Well, the industry is studying the issue intently.
MYERS: The industry has been studying the issue for six years and says it will make the change when it's sure it will make the cans safer.