Subrogation & Recovery Law Blog : Insurance Subrogation Lawyer & Attorney : Cozen O'Connor Law Firm : Property Damage & Insurance Commentary

On September 1, 2011 the Consumer Product Safety Commission announced a voluntary recall of all pourable gel fuels made by nine separate companies. The recall covers an estimated two million units of this fuel, which has been sold since 2008. Customers are being asked to contact the individual companies to obtain a refund for return of the product.

The recall is reportedly based on 65 reported incidents of flash fires. The fuel is designed to be used in outdoor fireplaces or firepits.  Specifically, the pourable gel fuel can ignite unexpectedly and splatter onto people and objects when it is poured into a firepot that is still burning.

If you have a claim involving a flash fire occurring when an individual was using pourable gel fuel, your first instinct may be to chalk it up to user error. However, based on this recall, thought should be given to pursuing a products liability theory.
 

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On April 21, 2011, the U.S. Consumer Product Safety Commission (“CPSC”) announced a recall of about 1.2 million Marineland “Stealth” and “Stealth Pro” aquarium heaters. The subject aquarium heaters are Marineland “Stealth” brand heaters of various model numbers and wattages, sold through their parent company, United Pet Group. The heaters were sold at pet stores and on websites from January 2004 through February 2011.

The “hazard” identified in the recall notice is a wiring problem that can cause the heaters to overheat during normal use, which in turn can lead to a fire hazard. The overheating can also cause the heater to shatter or the glass of the aquarium to break, resulting in a laceration hazard. The recall states that United Pet Group has received reports of 38 fires resulting in property damage and 45 reports of broken aquarium glass.

If you have a case where a Marineland Stealth or Stealth Pro aquarium heater is associated with a fire, you should consult the CPSC’s recall notice to determine if your model is one listed on the recall. The heaters associated with this recall are black plastic tubes and have a temperature adjustment knob at the top. They have also been sold as part of aquarium starter kits.
 

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On January 20, 2011 the U.S. Consumer Product Safety Commission (“CPSC”) announced a voluntary recall of Propane (LP) Gas, manufactured by Aux Sable Liquid Products of Morris, Illinois.  The affected propane was sold in portable cylinders and delivered to storage tanks.  The problem with this estimated 700 rail car units of propane gas is that some of the propane did not have sufficient levels of the odorant that should be added to propane to help alert consumers to a gas leak. Without the proper levels of odorant, a clear hazard is created in that failing to detect leaking gas can present fire, explosion and thermal burn dangers to consumers.

According to the CPSC, the recalled propane was sold to propane retailers in Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, Tennessee, Vermont and Virginia from February 25, 2010 through September 30, 2010.  The CPSC has encouraged consumers in the affected states who purchased propane gas during the aforementioned timeframe to contact Aux Sable to arrange for a free inspection and exchange.

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On March 11, 2011, the Consumer Product Safety Commission (“CPSC”) will officially launch a new website which offers a forum for consumers to register complaints about product-related safety issues. The database, located at http://saferproducts.gov/ will register complaints of injury or of potential harm filed by consumers, safety groups, health care professionals and other interested parties; non-safety product quality and performance complaints will not be included. Other information traditionally promulgated by CPSC, such as recall notices, will also be published in the database. It is further indicated that the database will provide automated email alerts to subscribers regarding new complaints and recalls.

Previously, product safety issues were publicly reported by the CPSC only after the body of safety complaints regarding a particular product reached the critical mass necessary for a recall. With the introduction of this database, subrogated insurers will be able to discover reported product deficiencies before they result in a recall or even if no recall ever issues.

Because participation in the complaint registration process is not limited to consumers, insurers affected by product failure should also be able to file complaints. If insurers are active in adding loss-causing product defects to the database, the depth and breadth of aggregated product hazard knowledge will grow exponentially, making the new database a more and more valuable resource over time.
 

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The Freedom of Information Act (“FOIA”) can be a useful tool that subrogation professionals can employ to effectively gather information to build a successful products liability claim. In cases where a loss is caused by a defective product, a simple FOIA request to the Consumer Products Safety Commission (“CPSC”) can produce a veritable treasure trove of documents of reported incidents involving a particular product. 

The CPSC tracks all complaints it receives about safety issues involving products sold in the United States. The complaints can come from a variety of sources, including local, state, or federal government agencies, as well as from consumers who contact the CPSC’s hotline. Depending on the number of incidents and the magnitude of the risk to consumers, the CPSC may launch an in-depth investigation (“IDI”) of a particular product.

Subrogation professionals investigating a potential products liability claim can utilize the CPSC’s website and FOIA requests to assist in determining whether there have been issues with a particular product. A FOIA request can produce incident reports and IDI reports relating to the product in question. To find out whether a product has been recalled, you can conduct a search at the CPSC website at http://www.cpsc.gov/cpscpub/prerel/prerel.html. 

There are several ways to submit a FOIA request to the CPSC. The CPSC accepts submissions via mail, facsimile, and even by email. Here is the CPSC’s contact information for FOIA requests:

FOIA Requester Service Center
US Consumer Product Safety Commission
4330 East West Highway, Room 502
Bethesda, MD 20814
Tel. (301) 504-7923
Fax. (301) 504-0127
cpsc-foia@cpsc.gov

It is important to note that the individual making the request is responsible for the cost of reproducing the documents, although there are times when the CPSC will waive the fee. In any event, the cost pales in comparison to the cost of filing suit and obtaining the documents through discovery.  Additionally, the manufacturer of the product is afforded an opportunity to correct or challenge any of the requested information, and the manufacturer can block disclosure of incident reports where they can prove inaccuracies with supporting documentation.  There are also other rare instances where manufacturers can prevent disclose if the requested information contains trade secrets and confidential commercial or financial information. To read more about FOIA requests and about what information is available, go to the CPSC’s Guide to Public Information at http://www.cpsc.gov/about/guide.html#Introduction. 

Finally, be on the lookout for a searchable database, which the CPSC is in the process of developing. The database was mandated by Consumer Product Safety Improvement Act  of 2008. It is anticipated that the database will be online at www.saferproducts.gov in March 2011.

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