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FIX-A-FLAT TRIAL GETS UNDER WAY IN BALDWIN

May 7, 2003

Lawyers clash over 1997 explosion that claimed life of Silverhill man

Bay Minette
By Brendan Kirby
Staff Reporter

Lawyers for the widow of a Silverhill man who died in an explosion six years ago opened their case Tuesday against the makers of a tire-repair product they contend was willfully mislabeled.

Armed with a bevy of visual aides, plaintiffs' lawyer Joseph "Buddy" Brown gave a nearly three-hour-long opening statement in Baldwin County Circuit Court.

He told jurors that Snap Products and its chief executive officer ignored repeated warnings from competitors, independent testing, the testimony of previous accident victims and the firm's own chemists that Fix-a-Flat was made with an explosive propellant.

Pamela Daniel is suing Snap Products, CEO Sam McInnis and two other defendants on behalf of her late husband's estate. The trial is expected to last three weeks and could become one of Baldwin County's biggest product liability cases.

Joe Ed Daniel was repairing a motor-grader at a former dirt race track south of Loxley on June 4, 1997, when an explosion decapitated him.

Daniel's lawyers contend the cause was a tire that had been filled with Fix-a-Flat about two weeks earlier. Brown likened the tire to a bomb.

"We expect to prove (that) by July of 1993, the countdown of a bomb had already been set," he said. "That countdown was never stopped, despite numerous opportunities."

A lawyer for Snap Products and McInnis, however, suggested that Daniel did not follow instructions on Fix-a-Flat can.

"There's a lot of truth to what Mr. Brown told you," defense attorney Earl W. Gunn said. "A lot of things are just wrong, and there are a lot of things that are taken out of context."

Brown showed jurors boards depicting a timeline beginning in 1987 and ending with Daniel's death in 1997. He said Paul Norman, the CEO of Snap Products' predecessor company, Nationwide Industries, changed the formula after he became aware in the late 1980s of the dangers associated with the propanbutane propellant used in Fix-a-Flat.

Although the new propellant worked well, Brown said, the company was forced to abandon it at the end of 1993 when Congress outlawed it as part of the Clean Air Act.

That left McInnis, who had become head of the company, with a fateful choice. Brown showed jurors a handwritten memo from McInnis considering the options -- discontinuing the product, switching to a safe propellant that would cost $1 a can more or using a propellant made from dimethyl ether that actually cost less.

McInnis chose the third option because it was much cheaper, Brown said, but kept a label advertising Fix-a-Flat as non-explosive.

"How deceptive. How illegal. How immoral," he said.

Penzoil since has purchased Fix-a-Flat, recalled the product and replaced it with a safer propellant. But Gunn said McInnis relied on the advice of others and did not become aware of dimethyl ether's explosive characteristics for several years.

"He always knew the third generation was flammable. What he didn't know is that it was explosive," he said.

Gunn said that by the time of Daniel's death, however, company officials had become aware of problem and ordered warning stickers to be placed on about a million Fix-a-Flat cans.

Brown called the sticker a "clever little trick" that he contended was purposefully placed on the side of the can and designed to blend in with the yellow background.

Instuctions warned against welding near a tire that had been repaired with Fix-a-Flat and stated that it was intended for use on a 15-inch tire -- much smaller than the motor-grader Daniel was working on.

"He had the can in his hand. He knew from his training and experience you dont weld (near) a tire with Fix-a-Flat in it," Gunn said. "Why he did what he did, I don't know. Maybe he didn't feel like he had the time to let out all the air in the tire."

One of the co-defendants, Safety Consultants Engineers, was removed from the case on Friday. Gunn said the company settled with the plaintiffs for $700,000.

The trial will resume today.

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