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.