Carbon monoxide deaths from propane heaters: carbon monoxide risks from camping heaters can turn a fun outing into a deadly ordeal. When tragedy strikes, plaintiff attorneys must ensure that manufacturers are held accountable.
As the coworker gave Charlie the heater, he said in a joking manner, "Don't die in my tent." After another worker used the heater for about an hour to warm his tent, Charlie took the Focus 15 heater into his tent and went to sleep. He was found dead in the morning from carbon monoxide (CO) poisoning.
This may sound like a difficult products liability case, but such cases are winnable. After eight days of trial and less than three hours of jury deliberation, an Oregon jury found the heater manufacturer--the Coleman Co.--negligent and strictly liable with no contributory fault attributed to Charlie. An Oregon appellate court upheld the wrongful death verdict. (1)
Since the 1970s, several companies have manufactured and sold propane radiant camping heaters. There are two types: bulk mount models that attach to 20-pound propane cylinders (as used with barbeque grills), and smaller models that use disposable 16.4-ounce propane bottles.
The heaters are not expensive--selling for around $40--and are prominently displayed and sold in camping stores. To an uninformed camping public, they look like the ideal solution for heating a tent, camper, or hunting or ice-fishing shack. For the most part, the heaters carry no warning that users could die from carbon monoxide poisoning if the heaters were used in an enclosed area.
Most propane heater litigation has been against Coleman. (2) The company entered the market in the mid-1980s, when other manufacturers were already producing similar products. For reasons discussed later, the heaters made by other manufacturers have not had a large number of CO incidents. But Coleman, which sells more camping products than other manufacturers, has become, by a large margin, the industry leader in CO deaths.
The company's Focus heaters had numerical designations indicating their maximum heat output. For instance, the Focus 5 produced a maximum of 5,000 British thermal units (Btu) of heat, and the Focus 15 produced a maximum of 15,000 Btu. The lowest Btu models--the Focus 3, 5, and 10--used disposable 16.4-ounce propane bottles. Larger models--the Focus 12 (sold only in Canada), 15, and 30--were bulk-mount heaters.
Even though Coleman sold the Focus 15 and 30 as camping heaters, the company maintained they were "outdoor heaters" and not to be taken into tents and campers. This presents an interesting question: Why does a camper need a heater only to heat the great outdoors? A campfire does that. A camper needs a heater to heat a tent or camper for sleeping after extinguishing the fire.
Another puzzler: Warnings on the heaters required "adequate ventilation" for any inside safe use. As Coleman instructs, to safely use a heater inside a tent or camper, windows or tent flaps must be open, which obviously lets in cold air, defeating the purpose of using the heater.
After selling more than a million Focus heaters, Coleman discontinued selling them in 1996. It sold a redesigned camping heater, called the Focus 15B, for less than two years, and the company launched a new line of heaters, called Powermates, in 1996. Although the Powermates were similar in function and design to the Focus bulk-mount heaters, Coleman promoted and sold them as "industrial heaters." (3) Until 2004, Coleman manufactured and sold the Powermates in 12,000-, 15,000-, 17,000-, and 45,000-Btu models. The Powermates present the same hazards to campers as the Focus heaters.
The first Coleman heater deaths were recorded in the early 1990s. In 1991, six campers--two adults and four children--in Massachusetts died while sleeping in a tent where a small Focus 5 propane heater was running. (4)
Coleman has not recalled its propane heaters, even though they have been connected to more than 65 deaths and at least 10 injuries caused by carbon monoxide poisoning. (5) Of this group, 18 deaths were related to the company's Powermate models.
The Powermate deaths have been occurring at a faster rate than the Focus deaths for the number of Powermates sold. Coleman discloses in discovery that over a million radiant heaters have been sold and remain in the hands of consumers. With no recall in sight, the CO deaths will certainly continue.
Carbon monoxide deaths from camping equipment have troubled the Consumer Product Safety Commission (CPSC) for years. (6) The CPSC has obtained the voluntary cooperation of four manufacturers to conduct recalls of their propane heaters. (7) Unfortunately, Coleman has never agreed to a voluntary recall, and the CPSC has never forced it to issue one.
On several occasions, the CPSC has issued reports and memoranda to the industry, including Coleman, with recommendations for warnings on portable camping heaters. (8) Carbon monoxide hazard warnings have been emphasized. Coleman ignored these recommendations and continued to sell its bulk-mount Focus and Powermate heaters with no CO warnings.
In 1996, human-factors experts at the CPSC published a memo, which Coleman received, that said, "There were 35 deaths and 8 injuries (nonfatal outcomes) from carbon monoxide poisoning from camping heaters reported in 23 CPSC in-depth investigations from 1990-1995." (9) This memo was highly critical of the type of language Coleman used in its warnings.
At least twice, Coleman engineers and in-house attorneys have attended meetings called by the CPSC to discuss warning deficiencies and changes in industry standards for propane camping heaters. Minutes of a 1994 CGA/ANSI Z21 joint subcommittee meeting attended by two of Coleman's lead engineers reported a "consensus" (at least tacitly indicating Coleman's agreement) for a revised warning that stated: "WARNING. This product can produce CO. CO has no odor and can kill you. See owner's manual for instructions." (10)
Twice, the CPSC initiated investigations of carbon monoxide deaths linked to Coleman heaters. It launched the first in 1992 after the deaths of the six Massachusetts campers. Under pressure from the CPSC, Coleman added a screen filter to the Focus 5 and altered that product's warning language to specify the CO hazard. These changes, in addition to some limited warnings published in camping magazines, satisfied the CPSC, which dropped the investigation in 1993. The company did not change the warnings on its other Focus heater models to warn of the CO hazard.
The second CPSC investigation started in 1999 after reported CO deaths from Coleman's Model 5014, the 15,000-Btu Powermate heater. The initial agency notice to Coleman in November 1999 stated, "The CPSC staff is concerned about the potential hazard of CO poisoning which could result from the use of these heaters in confined spaces such as garages, basements, campers, tents, etc., without adequate air circulation." (11)
The commission's engineering branch conducted a series of emission tests of the Powermate 5014. The results support claims that the Powermates, contrary to Coleman's assertions, produce deadly amounts of CO when used in enclosed spaces. (12)
An interesting part of this investigation dealt with the heaters' packaging. Although Coleman consistently contends that the Powermates are "industrial" and "outdoor" heaters, the cardboard box the heaters were sold in shows a person with rolled-up sleeves inside a building working on a vehicle with the hood up and a Powermate positioned nearby.
In a footnote in a January 2002 notice, the CPSC reminded Coleman, "As we discussed during our November 10, 1999, meeting, some Coleman heater shipping cartons show the product being used indoors. During that meeting Coleman agreed to revise the shipping cartons and eliminated [sic] references to indoor use." (13) Until Powermate production ceased in 2004, Coleman apparently never changed the packaging.
Although the Consumer Product Safety Act (14) was adopted for consumer protection, the work and reports of the CPSC have only limited use in civil litigation. Federal regulations prohibit depositions of CPSC personnel unless expressly authorized by the commission's general counsel. (15) Using a Freedom of Information Act request, attorneys may obtain certified copies of CPSC documents for civil trial use. (16)
At trial, plaintiff lawyers should expect the defense to raise a hearsay objection to the documents. But there is good authority (though not unanimous) that CPSC-certified documents fall within the business and public records exceptions to the hearsay rule. (17) Even if the documents are not admissible, expert witnesses can rely on them, (18) and plaintiff attorneys can use them to effectively cross-examine Coleman witnesses.
The first step to success in a case involving carbon monoxide poisoning from a camping heater is developing the product liability theories with the assistance of qualified experts.
Defective design. When a propane heater is operated in a confined space, the heater depletes the amount of oxygen in the air (from 20.9 percent in air at sea level) to dangerous percentages in the mid- to low teens, while it produces progressively higher levels of CO. Both effects will put campers to sleep, as the CO binds to the campers' hemoglobin and prevents the transfer of oxygen in red blood cells, producing a deadly condition called hypoxia. The amount of CO consumed can be measured by screening for carboxyhemoglobin in the blood of CO-poisoning victims.
A safety device called an oxygen depletion sensor (ODS) has been used on heaters in Europe for decades and in this country since 1982. (19)
One of the author's engineering experts has successfully adapted and tested ODS systems on Coleman heaters. Experts can testify that adding an ODS would increase the retail price of the heaters by only $18 to $20 per unit.
Another viable design-defect theory involves an automatic "flameout" characteristic designed into competing manufacturers' heaters. Documents produced in Coleman litigation reveal that when the company was developing its heaters, as early as 1982, it tested competitors' products. This testing showed that competitors' heaters had a built-in safety feature that would shut down, or "flame out," the unit when it was used in an enclosed area before deadly amounts of CO were produced. (20) Expert analysis has shown that the competitors' heaters will flame out when the oxygen levels decline and the built-in thermocouple cools down and shuts off the propane supply.
In depositions, Coleman engineers have acknowledged that they never explored why competitors' heaters flame out. (21) Coleman ignored its own testing and instead marketed thousands of camping heaters without this safety feature.
Claims targeting the Focus 5 heaters are based on a different design-defect theory. In most instances, a Focus 5 will not produce large quantities of CO when run in a test chamber. However, contamination entering the heater can alter the air-propane mixture that the heater burns to generate the radiant heat. This disruption of the propane flow causes the heater to unexpectedly generate huge quantities of CO from incomplete combustion. (22)
The Focus 5 heaters, sold from 1985 to 1992, had unprotected openings that could allow dirt, bugs, or other contamination to enter and alter the propane flow. Results of tests performed by Coleman's former chief engineer, Randy May, in 1993 provide devastating evidence that the company knew that reduced propane-flow pressure, such as caused by contamination, will produce deadly amounts of CO. (23)
Although Coleman added a screen-type filter to the Focus 5 to prevent contamination after the 1992 CPSC investigation, half a million Focus 5 heaters purchased before the design change are becoming increasingly dangerous as they age and become more contaminated.
Failure to warn. Depositions reveal that chief engineer Randy May, who had no human-factors training or outside human-factors assistance, was solely responsible for creating the warning language on the Focus heaters. (24) He has testified that he believes the wording and design of the warnings are superior to ANSI's warning recommendations.
Human-factors experts testifying in cases against Coleman have criticized the warnings on both the Focus and Powermate heaters for failing to identify the CO hazard, its consequences, and how to escape the hazard. (25) With the exception of the Focus 5 after 1992, the Coleman warnings never used the precise words "carbon monoxide" to identify this deadly hazard.
The warnings also use the ambiguous term "adequate ventilation" to describe how much fresh air campers need to ensure their safety. Most courts will allow the jury to determine whether a better warning could have prevented the incident. (26)
In some Focus and Powermate cases, American and Canadian industry standards can be helpful in proving the deficiency of Coleman's warnings. The company acknowledges that in the design of the smaller Focus and Powermate heaters, with a maximum 12,000 Btu, it attempted to comply with ANSI and Canadian industry standards. (27) Both standards recommend the use of warnings about the amounts of ventilation needed and set maximum safe CO output levels.
Coleman heaters clearly do not meet these standards. The Canadian standard requires that "a heater shall produce negligible carbon monoxide." (28) If a plaintiff expert can testify that a person in a tent or camper died from CO levels in excess of 1,500 parts per million (PPM), Coleman can hardly argue that this was "negligible carbon monoxide."
Standards for heaters larger than 12,000 Bm are not as clear. The only applicable standard appears to be Canadian, and it applies to all infrared heaters up to and including 400,000 Btu. Again, this standard recommends that warnings include language about specific amounts of fresh air openings, which Coleman did not follow. (29)
Despite Coleman's clear record of ignoring consumer safety, the path to recovery is not easy for plaintiffs. Coleman, like many large manufacturers, has taken a strong defense position in every case, forcing plaintiff lawyers to go the extra mile in preparing and presenting their cases. The company makes several specious defense claims.
Users are negligent. The company claims that its heaters are well-designed and have appropriate warnings and that negligent consumers use their products in a manner contrary to the warnings and instructions.
Coleman maintains, with no solid support, that the general public is well aware of the carbon monoxide risk posed by fuel-burning products. The company typically deposes the victim's friends and family to find support for its claim that the victim knew of the risk, ignored the clear warnings, and was therefore primarily at fault for his or her own death or injury.
Coleman attempted to gain support for this defense by having one of its experts conduct a consumer survey. Gerald Goldhaber, then a communications professor at the State University of New York, Buffalo, set up a research study in March 2002 at two different camping shows. A total of 1,005 attendees looked at and handled a Focus 15 and answered a questionnaire.
The survey's results are actually helpful to plaintiffs in debunking Coleman's claims that consumers are aware of its heaters' CO risk. The survey report reveals that 27.9 percent of the respondents "would think it would be safe to use this heater in a tent," 37.9 percent "would think it would be safe to use this heater in a camper," and 45 percent "would think it would be safe to use this heater in an enclosed fish house made of plywood." (30)
Alternative designs are not feasible. Coleman argues that ODS technology cannot be adapted to its heaters. The existence of other ODS-equipped heaters on the market and the testimony of qualified expertwitnesses can overcome this claim.
For example, in 1982, Coleman tested a Valor unvented room heater, equipped with an ODS. The tests showed that the ODS functioned as intended and shut the heater down as oxygen in the test chamber dropped to the 18 percent range--before CO reached dangerous levels. (31)
In depositions, Coleman engineers have acknowledged that, since the Valor tests were conducted, the company has never attempted to adapt an ODS to any Focus or Powermate heater. (32) The company contends that its radiant heaters operate at high pressure and are not compatible with a low-pressure ODS.
Plaintiff experts can respond that the pressure differential can easily be adjusted with a readily available commercial regulator. In 2000, Mr. Heater Corp., the industry leader in selling propane radiant heaters, began selling a safe indoor camping heater equipped with an ODS. Since then, several other manufacturers have introduced camping heaters with an ODS.
Until recently, Coleman contended that no manufacturer has sold an outdoor bulk-mount heater equipped with an ODS. Coleman argues that wind will blow out the ODS, making the device unsuitable for use on an outdoor heater.
Again, this claim can be easily refuted. Thousands of Italian-made bulk-mount heaters equipped with an ODS have been sold in the United States since 1995, and many more have been sold in Europe. A deposition of the vice president of merchandising for the U.S. distributor of the Italian heater confirms that there have been no reported malfunctions of the ODS, from wind or otherwise, and no reported CO-related deaths or injuries. (33)
Pamphlet warns of CO risk. In 1996, Coleman became involved in an industry group called the Coalition for Portable Radiant Heater Safety. The coalition prepared a CO warning pamphlet. This coalition pamphlet has been included in the packaging for Coleman Powermate heaters since 1997. When unfolded, the pamphlet presents a colorful and impressive carbon monoxide warning with an image of a skull and crossbones.
Coleman often refers to this pamphlet in its Powermate defenses. When carefully analyzed, the pamphlet can be discounted. It folds up to a 3-by-5 inch brochure that is similar to a lot of peripheral advertising that consumers routinely discard when opening a product's packaging. Also, the pamphlet's title--"Camp Safe, Camp Smart"--directly contradicts Coleman's claim that Powermates are industrial, not camping, heaters.
Prior incidents are not similar to the plaintiff's. In any heater litigation, a critical issue becomes what prior incidents of CO death and injury will be admissible as being of "substantial similarity." (34) Coleman routinely argues that every factual difference--such as tent size, temperature, wind, and alcohol or drug use by the victims--dictates that the incidents are not substantially similar.
But the better logic, is that the "mechanism of injury" is essentially the same in every case. That is, a Coleman heater used inside an enclosed space without adequate ventilation--be it in a tent, a camper, or a hunting or ice-fishing shack--results in dangerous amounts of CO sufficient to kill people. The admission before the jury of a history of deaths and injuries, with no product recall, should entitle the plaintiff to seek punitive damages in states still allowing punitives.
Coleman has shown no signs of conceding the danger of its heaters and accepting responsibility for the deaths and injuries they cause. With no recall in sight, these heaters--sadly--will continue to generate products liability wrongful death and injury cases for years to come.
(1.) Benjamin v. Coleman Co., No. 16-99-13699 (Or., Lane County Cir. Ct. Dec. 17,1999), aff'd sub nom. Benjamin v. Wal-Mart Stores, Inc., 61 P.3d 257 (Or. Ct. App. 2002), review denied 72 P.3d 76 (Or. 2003).
(2.) In 1998, Coleman was purchased by Sunbeam Corp. After Sunbeam's bankruptcy in 2001, Coleman emerged intact as a subsidiary of American Household, Inc., and, in 2005, as a subsidiary of Jarden Corp. See John T. Fakler, Sunbeam Bankruptcy a Gain for Some, Loss for Others, S. FLA. BUS. J., Feb. 6, 2001.
(3.) Discovery documents produced by Coleman reveal that it continued to sell the "industrial" Powermate heaters in camping and sporting goods retail outlets. The heaters are still being sold as camping heaters on Internet sites like eBay.
(4.) Souza v. Coleman Co., No. 92-00221 (Mass., Bristol County Super. Ct. 1992). In 1993, the parties agreed to a confidential settlement. Several other Coleman cases have been settled confidentially. The first case to reach a jury verdict for the plaintiff was tried in Oregon and affirmed on appeal. Benjamin, 61 P.3d 257. Another pro-plaintiff jury verdict was reached in a Florida federal court last year. (Covas v. Coleman Co., No. 00-CV-8541, 2005 WL 1705461 (S.D. Fla. June 24, 2005).) That case involved two CO deaths caused by a Focus 5 heater. Coleman's appeal to the Eleventh Circuit was rejected with a per curiam opinion on June 6, 2006.
(5.) Documents of these incidents can be obtained from the CPSC with a FOIA request. Discovery requests to Coleman will also produce similar-incident files; Coleman has investigated many of these incidents.
(6.) The first of several CPSC reports on the subject was published on April 12, 1993. See Sharon R. White, Preliminary Report on Incidents Associated with Portable Gas Camping Equipment (1993) (on file with author or available by FOIA request to the CPSC).
(7.) Four propane heater manufacturers have cooperated with the CPSC in voluntary recalls of their heaters: BernzOmatic in 1966, the 1980s, and 1990, after recording 42 CO deaths from its propane heaters (Press Release, CPSC, Bernzomatic Offers $250 Bounty for Old Propane Heaters, No. 95-002 (Oct. 3, 1994, rev. Apr. 28, 2004)), available at www.cpsc.gov/cpscpub/prerel/ prhtm195/95002.html (last visited June 21, 2006); Turner in 1995, after recording six CO deaths (Press Release, CPSC, CPSC Announces Recall of Turner Heaters; Company Offering $250 Reward, No. 95-170 (Sept. 21, 1995, rev. Mar. 13, 2002), available at www.cpsc.gov/cpscpub/ prerel/prhtm195/95170.html (last visited June 21, 2006)) ; Brinkmann in 2002, after only one reported CO death (Press Release, CPSC, CPSC, Brinkmann Announce Recall of Outdoor Tabletop Propane Heaters, No. 02-181 (June 13, 2002), available at www.cpsc.gov/cpscpub/prerel/ prhtm102/02181.html (last visited June 21, 2006)); and Academy Sports and Outdoors in 2003 after no recorded deaths or injuries but expressing concern that they may occur (Press Release, CPSC, Academy Sports and Outdoors Announce Recall of Propane Heaters, No. 03-175 (Aug. 21, 2003), available at www.cpsc.gov/ cpscpub/prerel/prhtm103/03175, html (last visited June 21,2006)).
(8.) See, e.g., Memorandum from Sharon R. White, Engineering Psychologist, CPSC, Example of Labeling for Gas-Fired Portable Camp Heaters and Lanterns (Nov. 16, 1993) (on file with author).
(9.) Memorandum from George Sweet, Engineering Psychologist, CPSC, Portable Camping Heaters: Incident Pattern and Warning Label Analysis (Apr. 24, 1996) (on file with author).
(10.) Meeting Log, CGA/ANSI Z21 Joint Sub-committee on Refrigerators and Portable Camping Equipment 2 (Sept. 29-30, 1994), available at www.cpsc.gov/library/foia/meetings/mtg94/ refrigerators.pdf (lastvisited June 21, 2006)); see also Meeting Log, Directorate for Engineering Sciences, Meeting with Camping Heater Manufacturers to Present Results of Preliminary Emissions Testing and to Express Concerns About Current Standards Requirements (Mar. 12, 1996), available at www.cpsc.gov/library/foia/meetings/ mtg96/Camping Heaters.pdf (last visited June 27, 2006)).
(11.) Letter from Richard K. Wright, Compliance Officer, CPSC, to David H. Baker, Attorney, Coleman Co. (Nov. 23, 1999) (on file with author).
(12.) Letter from Richard K. Wright, Compliance Officer, CPSC, to David H. Baker, Attorney, Coleman Co. (Jan. 7, 2002) (on file with author).
(14.) 15 U.S.C. [subsection] 2051-2085 (2000).
(15.) 16 C.F.R. [section] 1016.4 (2006).
(16.) 16 C.F.R. [section] 1016.3(b) (2006).
(17.) See United States v. Midwest Fireworks Mfg., 248 F.3d 563, 566-67 (6th Cir. 2001); Oberg v. Honda Motor Co., 851 P.2d 1084, 1086-88 (Or. 1993), rev'd on other grounds, 512U.S. 415 (1994). Contra Tober v. Graco Children's Prods., Inc., 431 F.3d 572, 576-77 (7th Cir. 2005).
(18.) See FED. R. EVID. 703; United States v. LeClair, 338 F.3d 882, 885 (8th Cir.), cert. denied, 540 U.S. 1025 (2003).
(19.) ANSI standard Z21.11.1, Gas-Fired Room Heaters, requires that an ODS be installed on unvented room heaters. AM. NAT'L STANDARD/ CSA STANDARD FOR PORTABLE GASFIRED ROOM HEATERS, ANSI Z-21-11 (Ist ed. 2000).
(20.) Coleman will produce its test documents on demand. Coleman requires trade-secret confidentiality agreements so at the conclusion of litigation, its test documents must be returned or destroyed.
(21.) Deposition of Frank Schmidt, Engineer, Coleman Co., at 39, Anderson v. Coleman Co., No. 000700161 (Utah, Millard County Dist. Ct. Sept. 9, 2002) (hereinafter Deposition of Schmidt).
(22.) Carbon monoxide in the air we breathe is measured in parts per million (ppm). The Occupational Safety & Health Administration Web site indicates that the Occupational Safety and Health Guidelines for Carbon Monoxide recommend an exposure limit of 50 ppm over an 8-hour period. See www.osha.gov/SLTC/heahhguidelines/ carbonmonoxide/recognition.html (last visited June 27, 2006) ; see also 29 C.F.R. App. A [section] 1926.55 tbl. Z-1 (2006). The National Institute for Occupational Safety and Health recommends an exposure limit of 35 ppm over an 8-hour period. See id. (basing NIOSH's CO limit on the risk of cardiovascular effects). The author's CO expert, David Penney, contends that anything over 100 ppm starts to cause physical discomfort. Dr. Penney's testimony in Covas, No. 00-CV-8541, 2005 WL 1705461, shows that a small Focus 5 heater can generate CO in a tent in excess of 1,500 ppm, which will kill a camper within an hour or two.
(23.) Letter from Kenneth R. Bell, Attorney, Coleman Co., to Lawrence R. Hershman, CPSC (Apr. 28, 1992) (containing 23 tests conducted by Randy May, Coleman Co. engineer) (on file with author).
(24.) Deposition of Randy May, Engineer, Coleman Co., at 30-32, Neether v. Coleman Co., No. CV03-193-M-DWM (D. Mont. Mar. 3, 2005) (on file with author).
(25.) See citations in notes 4, 21, and 24.
(26.) See, e.g., Brito v. County of Palm Beach, 753 So. 2d 109, 112-13 (Fla. Dist. Ct. App. 1998).
(27.) ANSI Z21.63-00 and CSA11.3-00 apply to heaters with a maximum 12,000 Btu and can help in cases involving Focus 3, 5, 10, and 12 and Powermate 5012 models. AM. NAT'L STANDARD/CSA STANDARD FOR PORTABLE TYPE GAS CAMP HEATERS, ANSI Z-21-63-00/CSA 11.3-00 (1st ed. 2000). The Canadian standard can also be obtained from the Web site of the Canadian Standards Association at www. csa-intl.org/onlinestore/GetCatalogComplete List.asp (last visited June 27, 2006).
(28.) CAN 1-11.3-M79, pt. 2.4, at 5 (on file with author, or can be obtained from Global Engineering Documents by calling (800) 354-7179).
(29.) CAN 1-2.23-M82. (see availability information, note 28).
(30.) GOLDHABER RES. ASSOCS., COLEMAN HEATER STUDY tbls. 23, 25 & 27 (Mar. 2002) (on file with author).
(31.) Coleman test results can be obtained through discovery to Coleman.
(32.) Deposition of Schmidt, supra note 21.
(33.) Deposition of Benjamin Kirk, Harbor Freight Tools Witness, at 57-58, Neether v. Coleman Co., No. CV03-193-M-DWM (D. Mont. July 7, 2005).
(34.) See, e.g., Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246-50 (10th Cir. 2000) (involving milling machine); Lovett ex rel. Lovett v. Union Pac. R.R., 201 F.3d 1074, 1080-81 (8th Cir. 2000) (involving vehicular design).
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