January 30, 2011
Wrongful Death Attorney statement to a personal injury mediator in advance of mediation.
The following is a statement from a defective products liability attorney handling a Cass County at Harrisonville, Missouri wrongful death case after transfer from Cass County Circuit Court in Harrisonville, Missouri.
The names and some information has been changed to protect the identity of the wrongful death victim’s family. This will give the reader an example of the types of information considered by defective products liability attorneys in wrongful death lawsuits.
FAX: 776-3379
Mr. Bill Harrison
K.C. MEDIATION/ARBITRATION
430 Belleview, Suite 200
Harrisonville, Missouri 64701
Re: Case Style: Karen A. Stevens, et al. v. Cass County Paint Manufacturing, Inc.
Case No.: 98-7566-CV-W-BB in the USDC WDMo
Accident Date: August 11, 2011
Our File No.: 06427-2486
Dear Mr. Harrison:
This wrongful death products liability lawsuit is scheduled for mediation at our office on Thursday, February 1, 2011, beginning at 11:30 a.m. Pursuant to Ms. Johnnie Baker’s correspondence of January 10, 2011, here is our mediation statement. This case is pending in the United States District Court for the Western District of Missouri at Kansas City. This is after transfer from the Circuit Court of Cass County, Missouri at Harrisonville. It is presently set for trial on February 26, 2011, in front of Judge John Maughmer. The parties have agreed to participate in this mediation.
PARTIES
Karen Stevens and her children (Annette and Alex), represented by attorney Scott Mach, filed suit against Defendant Cass County Paint Manufacturing, Inc. (hereinafter “Cass County Paint”) for wrongful death based on defective product liability. Specifically, Plaintiffs contend that James Stevens died on August 11, 2007 while using Stain Paint Blocker 1000, a paint product manufactured by Cass County Paint. Mr. Stevens was married to Karen Stevens at the time and is the father of Annette and Alex. In their Harrisonville, Missouri wrongful death attorney’s first amended complaint, Plaintiffs assert the following claims against Cass County Paint: Strict Liability (Product Defect), Strict Liability (Failure to Warn), Product Liability (Negligently Supplying a Dangerous Instrumentality), and Negligence.
Cass County Paint is represented by Matt Hamilton, a Pleasant Hill wrongful death attorney. It is expected that Candice Hall, the adjustor handling the claim on behalf of Forge Insurance, will also be attending the mediation.
STATEMENT OF FACTS
At the time of his death, James Stevens was working for Harrisonville Painting, Inc., for whom he had worked for approximately eight (8) years. Mr. Stevens was Harrisonville Painting’s most experienced painter. Sometime between 3:00-3:30 p.m., Mr. Stevens went down into the basement of a residence in Lee’s Summit, Missouri to begin spraying Stain Paint Blocker 1000 on several doors and cabinets. At approximately 3:50 p.m., Matt Veisides, a co-worker, advised Mr. Stevens that he was leaving the house. While Mr. Veisides did not enter the basement, he could tell that Mr. Stevens was spraying and wearing a respirator due to the fact that Mr. Stevens’s voice was muffled when he acknowledged hearing Mr. Vleisides. At that point, Mr. Stevens was the only person at the Cass County, Missouri Harrisonville residence.
After Mr. Stevens did not come home that evening, his wife, Karen, and mother-in-law, Marcia Cass, went to the worksite at approximately 11:00 p.m. They found Mr. Stevens lying on the basement floor. They went to a nearby house to get help and to call the paramedics. Before the paramedics arrived, John Heisel, Jennifer Cunard and Mary Jones (who were at the neighboring house and who did not know the Steven’s) went down to the basement to check on Mr. Stevens’ condition and to perform CPR if needed. After partially removing Mr. Stevens’ respirator to attempt CPR, Mr. Heisel realized that Mr. Stevens had suffered a wrongful death.
Upon their arrival, Harrisonville, Missouri police and Cass County, Missouri fire department personnel confirmed that Mr. Stevens had been dead for some time. Due to there still being a strong odor of paint fumes, the fire department opened the windows and brought in a fan in order to ventilate the basement. There were two small windows in the basement, both of which were covered with plastic upon their arrival. Mr. Stevens was not using a fan when he was spraying.
The autopsy report indicated that the cause of death was hydrocarbon inhalation toxicity. A toxicology report acknowledged the presence of hydrocarbons in Mr. Stevens’ body similar to those contained in Stain Paint Blocker 1000. Karen Stevens told the investigating Harrisonville police officer that James Stevens “had told her the last time he used his respirator, it was not working properly.” A copy of the police report is attached hereto as Exhibit A. The autopsy report, a copy of which is attached hereto as Exhibit B, further indicated that the respirator straps were “less elastic than expected.”
Stain Paint Blocker 1000 is an undercoater paint product. It is white in color and is primarily used to paint over marks, spots, etc. The undercoater is applied and then paint can be applied over it. Prior to 1993, the product was referred to as “Wipe Out”. As indicated on its warning labels, Stain Paint Blocker 1000 is for professional use only. Furthermore, the back label on the container indicates, among other things, that users should use an appropriately fitted respirator and use only in well-ventilated areas to avoid breathing the product vapors. Copies of the front and back labels are attached hereto as Exhibit C. Finally, the material safety data sheet for Stain Paint Blocker 1000 indicates, among other things, that excessive/prolonged inhalation can cause brain and/or central nervous system damage and that intentional misuse through deliberate inhalation may be harmful or fatal. A copy of the product material safety data sheet is attached hereto as Exhibit D.
PROCEDURAL HISTORY
Plaintiffs originally filed their petition against Cass County Paint in October of 2008. In June of 2009, Plaintiffs joined 3-M and The Cass County Paint Company as co-defendants. 3-M allegedly manufactured the respirator that Mr. Stevens was wearing at the time of his wrongful death. Cass County Paint allegedly was the retailer from whom the respirator was purchased by Pro Painting. The court approved the wrongful death settlements between Plaintiffs and the co-defendants in September of 2010. 3-M settled the claims against it for $137,500.00 and Cass County Paint settled the claims against it for $115,000.00. Cass County Paint is entitled to a credit in the amount of those settlements ($42,500.00) against any verdict rendered against Cass County Paint.
In October of 2010, the wrongful death attorney for Cass County Paint filed a motion for summary judgment wherein it primarily argued that under Missouri law Cass County Paint had no duty to warn of open, obvious, and commonly known dangers and that Stain Paint Blocker 1000 is not unreasonably dangerous when put to its reasonably anticipated use. There is nothing to suggest that any additional warning would have altered Mr. Stevens’ behavior. It is apparent from the discovery conducted in the case that Mr. Stevens was well aware of the need to wear a respirator (he was wearing a respirator at the time of his death) and to spray Stain Paint Blocker 1000 with adequate ventilation (he had communicated the need for ventilation to others). Furthermore, Plaintiffs cannot establish that Mr. Stevens still would have died had he been spraying while wearing an appropriately fitted and properly working respirator and/or with adequate ventilation. Our contention is especially supported by the fact that Mr. Stevens had sprayed the product (while wearing a respirator) for more than seven (7) years without any prior problems. The court has not yet ruled on the motion.
Finally, in October of 2010, both parties filed Daubert challenges against each other’s expert. Plaintiffs have retained Dr. Patrick McIver to serve as their warnings expert while Cass County Paint has retained Dr. Dan Horst to serve as its human factors expert. Both parties contend that the opinions to be offered by both experts are not based on any relevant or reliable data, objective criteria, or authoritative publications. In particular, Dr. McIver could not cite to any authorities (other than Prosser on Torts) for his opinions and essentially acknowledged that whether the labels used the signal word “danger” instead of “warning” likely would not have affected James Stevens’ behavior. The court has not yet ruled on these motions.
PLAINTIFFS’ ALLEGED DAMAGES
The Harrisonville wrongful death attorneys for Plaintiffs have produced bills related to Mr. Stevens’ funeral expenses in the amount of approximately $7,000.00 which are not in dispute. Furthermore, Plaintiffs’ economist, Dr. John Ward, hired by the Lee’s Summit wrongful death lawyers opines that Mr. Stevens’ lost future income and lost future services to his spouse (who has since remarried) and children is $1,020,818.00. As with any economist, the adjustments given by Dr. Ward for inflation, wage growth, etc. and the values given by Dr. Ward for loss of services for household work, child supervision, and guidance and counsel are subject to attack. Nevertheless, Mr. Stevens, who was 30 years old when he died, presumably would have been able to keep working for another 30-35 years and would have provided benefit to his family if not for his wrongful death.
DEFENDANT’S PRODUCTS LIABILITY WRONGFUL DEATH DEFENSES
The Harrisonville personal injury attorneys for Plaintiffs are solely alleging that Stain Paint Blocker 1000 was unreasonably dangerous due to its inadequate warnings; they are not alleging that Stain Paint Blocker 1000 was unreasonably dangerous due to its chemical composition. Plaintiffs are primarily arguing that the product labeling and material safety data sheets do not warn a user that excessive inhalation can cause death. Furthermore, they contend that Cass County Paint did not follow the industry labeling guidelines since the product label has the signal word “warning” rather than “danger.” Cass County Paint concedes that the product label should contain the signal word “danger.” However, that concession should be irrelevant, and thus inadmissible, because Plaintiffs’ own warnings expert, Dr. McIver, acknowledges that research indicates that there is no significant difference in user behavior between the two signal words (e.g., the word “danger” rather than “warning” does not significantly alter user behavior). Based on their own expert’s testimony, even if the label contained the signal word “danger”, there is nothing to suggest that it would have in any way altered James Stevens’ behavior. Cass County Paint will file an appropriate motion in limine in this regard.
Even if Cass County Paint’s motion for summary judgment filed by the Cass County products liability attorneys is denied, the Harrisonville wrongful death attorneys for Plaintiffs will have a difficult time making a submissible case against Cass County Paint based on inadequate warnings. The Stain Paint Blocker 1000 warnings were adequate in that the most important thing they could communicate is for the user to wear a properly fitting and properly working respirator. Plaintiffs have no expert who will say that if James Stevens had a non-defective, properly functioning respirator on while he was spraying on August 11, 2007, then vapors from Stain Paint Blocker 1000 would have killed him. Mr. Stevens had used Stain Paint Blocker 1000/Wipe Out for seven (7) or more years without his wrongful death as long as he wore a respirator that fit and worked properly. If his respirator had been fit and worked properly on August 11, 2007, then he would not have died. The fact that his respirator did not firmly fit is supported by the following: (1) the respirator strap was less elastic than expected; (2) Mr. Stevens had complained of problems with his respirator the last time he used it before his death; and (3) Mr. Stevens had facial hair on the day he died even though the respirator warnings (copies of which are attached hereto as Exhibit E) advised against facial hair in order to ensure that the respirator fit properly. If it fit properly, then it necessarily follows that the respirator did not function properly since every other time Mr. Stevens sprayed Stain Paint Blocker 1000 while wearing a properly fitting and functioning respirator he did not die. Under both scenarios, James Stevens’ wrongful death was not caused by the Stain Paint Blocker 1000 warnings.
Furthermore, Cass County Paint is confident that even if the court submits this case to the jury, it will be exonerated. The evidence demonstrates that James Stevens and/or 3-M is liable for the majority, if not all, of the fault. As mentioned above, the evidence demonstrates that Mr. Stevens failed to ensure that his respirator was fitting and/or working properly on August 11, 2007. If it fit properly, then it necessarily follows that the respirator was defective, for which 3-M is responsible. Furthermore, Mr. Stevens failed to open all windows or use a fan in the basement where he was spraying, despite the fact that he was well aware of the need for adequate ventilation when spraying. Both of the windows in the basement were covered with plastic, thereby preventing ventilation. These facts can only demonstrate that Mr. Stevens’ death was attributable to his own negligence and/or a defect with the respirator rather than inadequate warnings on the Stain Paint Blocker 1000.
PRIOR SETTLEMENT DISCUSSIONS
The Lee’s Summit products liability lawyers for Plaintiffs initially demanded $1,000,000.00 and Cass County Paint responded by offering $50,000.00. Plaintiffs thereafter reduced their demand to $950,000.00. Cass County Paint has made no response to such demand. Plaintiffs’ Harrisonville personal injury attorney has acknowledged posturing the case for settlement in the neighborhood of $750,000.00. All of these settlement discussions took place before the filing of Cass County Paint’s motion for summary judgment and the Daubert challenges.
CONCLUSION
Plaintiffs should have difficulty in (1) avoiding summary judgment; (2) making a submissible case on the warnings issue; and (3) convincing a federal court jury that Stain Paint Blocker 1000 is an unreasonably dangerous product due to its inadequate warnings. There is a good chance that Dr. McIver, should he be allowed to testify at all, will not be allowed to testify regarding the improper use of the signal word “warning” rather than “danger”. Frankly, Plaintiffs have nothing which demonstrates that the warnings were inadequate, thus causing the wrongful death. Mr. Stevens was wearing a respirator, which he knew should fit and work properly, and knew to ventilate the area when spraying (yet did not do so on August 11, 2007) – what additional warnings could Cass County Paint have given? The simple fact is that everyone knows that breathing paint fumes, either intentionally or unintentionally, can be dangerous and that certain precautions need to be taken when utilizing such products. Mr. Stevens’ wrongful death in Harrisonville, though tragic, was not the fault of Cass County Paint.
I hope that the information set forth herein and in the attached exhibits will help clarify the issues we will be discussing on Thursday. I look forward to seeing you.
Very truly yours,
Matt Hamilton
personal injury wrongful death attorney