Blame the lawsuits for shutting down Blitz USA…or blame Blitz USA’s products for causing the lawsuits?
Tuesday, August 14, 2012
The following is adapted from an article by Steve Miller, National Editor, Let America Know.
Blitz USA, America’s largest plastic gas-can maker, recently closed its manufacturing plant in Miami, Okla., after nearly 50 years of operation, laid off 117 employees in the process, and put the blame on product liability lawsuits against the company. “We have been operating under extremely litigious environment [sic],” company officials said in a 2011 letter to customers. At that time the company was filing for Chapter 11 bankruptcy protection, saying, “The defense costs related to increased litigation associated with fuel containment products is the primary factor that leads to our current situation.”
The “increased litigation” stemmed from more than 75 known incidents of people severely burned or killed when a Blitz gas can exploded. Fourteen people were burned to death, six of them children. And with millions of these gas cans still in use around the country, the injuries and deaths will continue.
The company ignored overwhelming test results – including their own tests – that their gas cans are exploding because of a manufacturing defect, transforming them into flamethrowers that are torching innocent people. And in a revelation eerily similar to the Ford Pinto cases of the early 1970s, the company knew about the problem but chose to save money rather than install a simple fix.
Christopher Scholl, communications director for the American Association for Justice (whose members represent plaintiffs in civil suits such as the type filed against Blitz USA), says a 50-cent fix could have increased consumer safety:
The consumer gas cans manufactured by Blitz USA are lacking something called a “flame arrestor.” It’s a simple thing: just a piece of mesh that goes over the nozzle and contains the fumes in the can while the gasoline pours. Professional-grade gas cans have them. In fact, flame arrestors have been used industrially for more than 200 years. But Blitz and other makers have not been installing them on the plastic gas cans they sell to consumers.
That’s the real story. Why would any company not provide an inexpensive fix to a problem that has killed many Americans and afflicted others with excruciatingly painful and permanently disfiguring injuries? Why did Blitz choose to continue selling this defective product and the expensive litigation they knew would follow rather than put these inexpensive flame arrestors in place and save lives?
And yet apologists for the business lobby in the media would paint those seeking justice from Blitz USA as the ones to blame for the company’s demise.
The Wall Street Journal titled its July 23 editorial, “The Tort Bar Burns On. A Case Study in Modern Robbery: Targeting the Red Plastic Gas Can.” The editors describe as “trial-lawyer logic” the idea that “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….stories like this cry out for a bipartisan offensive against these destructive raids that loot law-abiding companies merely because our insane tort laws make them vulnerable.”
The Southeast Texas Record (owned by the U.S. Chamber of Commerce‘s “tort reform” advocacy group Institute for Legal Reform) was a bit more blunt, saying, “The Three Stooges or Yosemite Sam might use a lighted match to check the level in a container of gasoline and miraculously survive the combustion, but people who try a stunt like that in real life are just plain ignorant and have no one but themselves to blame.” In summary, “Another triumph for greedy litigants, their lawyers – and future Chinese manufacturers.”
And John Stossel of Fox Business wrote, “Lawyers say they help the ‘little guy.’ Sometimes they do. But they also create their own victims. The newest casualty is Blitz USA, the nation’s largest producer of consumer gas cans.” Stossel defended Blitz by saying it’s not the company’s fault that “customers make stupid decisions” and said lawyers “realize they can get rich by legally extorting money from the company.” He concluded by lamenting, “Now more Americans will store gasoline in less convenient and much less safe containers.”
These accounts fail to mention the harm caused in cases that have nothing to do with “stupid decisions” or “simple misuse of the product.”
Three-year-old Landon Beadore knocked over a Blitz gas can while putting away his sister’s tricycle and the vapors were ignited by a water heater, then flashed back into the can, causing an explosion that severely burned nearly half Landon’s body. A flame arrestor would have prevented the explosion. Firefighter Chad Funchess was filling up his chain saw when his Blitz gas can exploded. He spent more than four months in a coma. William Melvin, a member of a Porsche racing team pit crew who certainly knew how to handle gasoline, was filling up his lawnmower when the Blitz gas can exploded and threw him through his barn. None of these sound like examples of Yosemite Sam or the Three Stooges.
For “tort reformers” it’s McDonald’s hot coffee all over again, with comments like these: “Lawsuit abuse is killing businesses in America. Why don’t people take responsibility for their own stupidity? We need to limit these lawsuits by capping damages and making it harder for lawyers to get away with these outrages.” The U.S. Chamber hired documentary filmmakers to shoot footage the day Blitz closed its doors, and the Chamber plans to use excerpts in political ads this fall attacking pro-consumer/anti-“tort reform” candidates.
But Blitz USA is far from the innocent corporate bystander it claims to be. Here are the facts:
Flame arrestors, which are used on everything from charcoal lighter fluid bottles to motor boats to metal gas cans to bottles of Bacardi 151-proof rum, were removed by Blitz when they began making cheap plastic cans. Blitz subsequently became Walmart’s exclusive supplier of gas cans and captured 75 percent of the U.S. market. Other plastic gas can manufacturers have followed suit and stopped making their gas cans with the flame arrestor.
A company whistleblower testified in trial that Blitz destroyed documents related to engineering studies the company had done on flame arrestors dating back to 2004. Engineers actually provided the company with specifications for a flame arrestor for their gas can and a list of manufacturers that could make the missing safety part. But plans to retrofit the cans were scrapped when the company was later sold to Kinderhook, a Wall Street private equity firm (like Bain Capital) with almost a billion dollars under management.
Other Blitz documents regarding flame arrestors were hidden from the victims that sued Blitz and were not produced until the whistleblower came forward. Ultimately, Blitz was sanctioned by a federal court in Texas for abusing the civil justice process by destroying documents and providing inaccurate testimony.
Television reporter Dan Rather did two special reports on exploding gas cans, one in 2008 and another in 2011. Rather interviewed victims and their attorneys, experts, government officials and a Blitz company spokesperson. While the company spokesperson looks earnestly into the camera and claims that Blitz cans without arrestors are safe, expert after expert disagrees. Viewers watch Blitz gas cans explode in various test laboratories, including one particularly disturbing sequence showing flaming gas thrown on a child dummy.
Who would have thought that the Chamber would champion the case of a dangerous product that is responsible for the burning deaths and injuries of Americans, many of them children? And how many more people will be burned before these gas cans are taken off the market?
AAJ’s Christopher Scholl:
The fact is this is not an industry that has done much for safety on its own. Child-proof gas caps weren’t even installed on gas cans until a couple of years ago, when the Consumer Product Safety Commission ordered manufacturers to do it. As long as this industry refuses to protect its consumers from its products, it should not be protected from liability.
The Wall Street Journal editorial…focuses on how Blitz is now filing for bankruptcy. But this is exactly how our civil justice system is supposed to work. When companies make flawed products and knowingly sell them to unsuspecting Americans, when they fail to look out for the welfare of their customers, they must be held accountable.