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FIX-A-FLAT JURY PLANNED TO OFFER $7 MILLION

Jun 6, 2003

Lawyers settled lawsuit moments before jury reported verdict

By BRENDAN KIRBY
Staff Reporter - Mobile Register


BAY MINETTE -- A Baldwin County jury whose work was cut short by a last-minute settlement was prepared to award $7 million to the widow of a Silverhill man who died in a tire explosion, several jurors said.

That judgment would have ranked among the richest jury verdicts in the recent history of Baldwin County, which is regarded in legal circles as a conservative county despite being part of a state accused of having plaintiff-friendly, high-dollar-verdict "jackpot justice."

Lawyers for both sides agreed to a settlement moments before the jury reported its decision to the judge. How much the plaintiff wound up getting remains unclear since the settlement included a confidentiality clause forbidding the parties from disclosing the terms.

The case pitted Pamela Daniel, on behalf of her late husband's estate, against the company that manufactured the tire-repair product Fix-a-Flat and its top corporate official.

Joe Ed Daniel, 42, died in a June 1997 explosion that occurred as he was welding on a motor grader with a tire that had been repaired with Fix-a-Flat. Plaintiffs' lawyers argued that Snap Products and CEO Sam McInnis switched to a cheaper but dangerous propellant in the early 1990s and retained labeling on the can advertising it as nonexplosive.

After a three-week trial before Baldwin County Circuit Judge J. Lang Floyd, the 12 jurors deliberated for about four hours last week. Before the settlement, they had agreed to award $7 million to Daniel.

"I just felt that they were guilty, that they had a product that was a potential bomb and knew it," said Wendell Johnson, a Daphne resident who served on the jury. "They were irresponsible."

Daniel's lawyers devoted much of their energy during closing arguments to trying to convince the jury that a high-dollar verdict in her favor would resonate throughout the country. The attorneys asked for $31 million, which they said would send a strong message to the entire industry.

Joseph "Buddy" Brown, the lead attorney for Daniel, acknowledged that striking a confidential settlement may have undercut the deterrence value of the trial. But he said that taking the deal eliminated the prospect of lengthy appeals and provided finality for Daniel, who already had waited six years. Wednesday was the anniversary of her husband's death.

"Whatever is in my client's best interest is what I have to do, regardless of what I might want to do with respect to the public," he said Thursday.

Two of the jurors said this week that they quickly determined that Snap was to blame for Daniel's death. But they said they disagreed about McInnis' culpability. In the end, they decided to find against the company only.

Jurors also disagreed about the size of the award, Johnson said. The 70-year-old retired forester said views ranged from about $2 million to $10 million. To break the deadlock, he said, jurors decided they each would write down an amount on a piece of paper, total the numbers, then divide by 12.

Johnson said he, personally, favored a $10 million judgment -- high enough to send a message but still only a third of what the plaintiff wanted. He said he was swayed by testimony that McInnis had faulted a competitor for using a dimethyl ether-based formula in the propellant in the early 1990s. Snap adopted a similar formula a few years later.

"He knew it was dangerous when they were using it. He had to know it was dangerous when he was using it," Johnson said. "I never bought into any of his defense."

Not all of the jurors were convinced. Stapleton resident Thomas Hancock said many employees at the company -- and some folks outside the firm -- contributed to the accident. McInnis insisted that he relied on the expertise of employees and consultants with more hands-on knowledge, and Hancock said he was not convinced otherwise.

"I felt like, to a degree, everyone involved was at fault to a point," said Hancock, a 38-year-old diesel mechanic.

Jurors expressed a certain amount of frustration that they sat through 16 days of testimony only to have lawyers settle the dispute before they rendered a verdict. Johnson recalled eating a lunch of crackers and Slim-Fast that he brought from home each day because the juror compensation -- $10 a day and 5 cents per mile, or $197 total in his case -- did not allow for restaurant meals for a person on a fixed income.

"I was disappointed we sat there for 3 weeks and they came up with that resolution," added fellow juror Walter Staimpel, an Elberta resident who declined to discuss the deliberations.

A $7 million verdict would have ranked among the top five civil judgments in Baldwin County since at least 1980, according to a survey by the Alabama Administrative Office of Courts. The largest was a $65 million judgment in 1993 against Montrose Bay Health Care Center and Vari-Care Inc. in the death of an elderly nursing home patient. The parties in that case ultimately settled for an undisclosed amount after the defendants appealed.

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