Private Attorney General Case Turns Up Heat for Barbecue Industry

 

The Bible study class had gathered at is pastor's home in Contra Costa County for an outdoor barbecue on a warm summer evening in 1993. Suddenly, the gas grill exploded into flames, severely burning Robert Rapier, who was doing the cooking, and 12-year-old Kristin Boyd, who tried to run away from the bolt of heat. 

 

Robert Mills

 "Robert took two steps back, and his arms were sizzling like bacon," said Oakland attorney Montie S. Day who's representing both victims. "They both spent several weeks in the hospital."

The incident prompted Day, a former Chicago Bears defensive end, to probe into the liquid propane barbecue industry as part of his personal injury suit. After digging up an old U.S. Consumer Product Safety Commission Study, showing that barbecue manufacturers had done little to prevent accidents associated with their products, Day turned to San Rafael lawyer Robert W. Mills for further assistance.

The resulting lawsuit, filed in Marin County Superior Court in 1993, has produced dramatic results for the estimated 50 million owners of liquid propane grills, along with future customers.

"We will save countless people from injuries. I'm very proud of this," said Mills, whose six-lawyer firm specializes in consumer class actions.

In the case of the dangerous grills, Mills decided against pursuing a personal injury claim directed at a particular manufacturer. Instead, he chose a private attorney general strategy aimed at changing what he believed to be the barbecue industry's deceptive practices in failing to warn consumers of the dangers of liquid propane grills and tanks.

The suit filed by Mills' firm - Herlinger v. Sunbeam, 157907 - relies on California's Consumer Protection Act (Business & Professions Code section 17200) in seeking remedies from the entire liquid propane grill and tank industry.

With allegations of unfair business practices, fraud and breach of warranty, the suit by February 1995 resulted in settlements with several companies that either manufacture the liquid propane barbecues or sell them to consumers.

"It just made sense in the course of the case [to settle]," said Steve Smith, a Los Angeles attorney who represents Manchester Tank & Equipment Co., a Tennessee manufacturer. "The case was very expensive, and there was a lot of legal activity."

The trial against the last remaining defendant, Worthington Industries Inc. of Columbus, Ohio, is scheduled to begin April 12 in Marin County Superior Court.

"We really took a pound of flesh out of the industry," said Mills, referring to the elaborate safety steps required of the defendants who settled. "They hadn't done anything for 10 years, and there was nothing on the horizon. Eventually, after they fried a few thousand more people, maybe the government would have come down on them."

Figures from the National Fire Protection Service reported 1,900 accidents involving liquid propane grills in one recent year, with 325 resulting injuries. In Vancouver Canada, a grill explosion in 1992 set two duplex homes ablaze, killing one woman and leaving five families homeless.

In 1986, the U.S. Consumer Product Safety Commission Began sounding the fire alarm. The commission, after noticing that grills were producing a disproportionate number of accidents compared to appliances using fuels like natural gas, hired an expert con sultant, W.A. Bullerdiek, to propose some solutions.

According to Bullerdiek, safety problems often started when gas stations over filled the 20-pound liquid propane tanks. Situated under the grill, where the tanks are heated by the sun or the barbecues flame, the overfilled tanks would release expanding gas, which could then be ignited by flames.

"Overfill can lead to unwanted gas releases, which in grill use nearly always leads to ignition," said Bullerdiek's report.

To reduce accidents, the commission recommended that the industry install "stop-fill" valves in the gas tank, to prevent overfilling. It also recommended that manufacturers, as a safety precaution, redesign barbecues to prevent owners from storing a spare gas tank under the grills.

Worthington, in a response letter to the commission in December 1986, said Bullerdiek "brought up several good, valid points and shortcomings in the [liquid propane] gas industry." The tank maker added that suitable stop-fill valves were not yet commercially available, but recommended that they be developed.

The Barbecue Industry Association likewise recognized the danger of storing spare tanks, but noted at the time that "no grills are manufactured with the spare cylinder provision."

But Mills and Day argue that little has changed when it comes to making the barbecues safer. "The manufacturers said they would fix the problem, but they just shined the commission on," said Mills. "No one wanted to be the first to adopt the changes for fear it would put them at a competitive disadvantage."

Day also took exception to industry actions. "They said [at the time of the commission's report] they weren't making grills with storage space underneath. But I can go right now to any store that sells grills and buy one."

 

Mills with employees Gil Murray and Derek G. Howard

Richard Ergo, a lawyer with Walnut Creek's Bowles & Verna, which is representing Worthington, said competition is not the issue in the case.

"The stop-fill valve under consideration has bugs in it that could make the tank more likely to [release gas] and more dangerous." he said. "These concerns have to be addressed before we put the valve in our cylinders."

Manchester, the Tennessee company, began designing a safety valve a few years ago. Personal injury lawsuits may have had something to do with that.

Darrel Reifschneider, Manchester's president and chief executive officer, told a trade publication in 1994 that "some grill manufacturers face as many as 100 personal injury cases annually," with costs as high as $1 million a year. In 1991 a family in Corpus Christi, Texas, settled with Sears for $4.8 million after a grill explosion destroyed their home and hospitalized the husband for months.

These personal injury suits were of little help to attorneys working on the Marin suit, Mills said, since plaintiffs usually agreed to confidentiality in exchange for the settlements.

But a bread occurred late last year while Gil Murray, a lawyer at Mills' firm was taking a deposition of a Manchester safety specialist.

"We asked him about what his company had told the grill manufacturers about accidents, and he told us about a videotape made by Manchester describing the explosions," said Murray. "It was a defining moment in the case. I immediately took a break and tr ied to contain my glee."

The 1993 tape detailed the cause of the accidents just as Bulleriek had done years before. The video was made as a promotional tool to help Manchester sell the safety stop-fill valves to other barbecue makers.

"This was an explosive piece of evidence, pardon the pun," said Murray. "Manchester took this tape on a road show to grill makers. Even after that [grill makers] did nothing to warn consumers. They didn't want people to associate their product with danger."

According to Murray, the tape helped to convince some of the original defendants in the Marin suit to settle. The settlement requires the defendants to include stop-fill valves in tanks by October 1997, notify millions of current barbecue owners about s afety hazards, and place brightly colored warning stickers on grills and tanks.

"Safety is our most important feature, and what we had to do to settle the suit lent to increased safety," said Eric Bland a Columbia, S.C., attorney who represented the Ducane Co., one of the companies that settled.

Competition in the barbecue industry, meanwhile, might explain why Worthington, which competes directly with Manchester in manufacturing liquid propane tanks, so far has been unwilling to settle the lawsuit.

"The stop-fill valve is Manchester's, and Worthington doesn't want to support it through a settlement," said Murray.

Mills, who hopes to collect as much as $2 million in attorneys fees from litigating the barbecue case, runs a low-overhead firm in which the other lawyers work primarily from their own homes via modems and faxes. He describes it as a "virtual reality" firm.

A 1974 graduate of San Francisco's Golden Gate University School of Law, Mills left his legal practice to become a securities broker in the early 1980's.

But in 1989, as the market sank, Mills jumped back into the law after becoming "shocked at the amount of fraud I encountered" in the securities industry.

As a lawyer, he has developed a reputation for sniffing out cases that are likely to attract media attention. A story in People magazine about a suit he had brought against rap star M.C. Hammer caught Day's eye and prompted the Oakland lawyer to bring the barbecue case to Mills' attention.

Confident of success in his campaign against the barbecue industry, Mills said he would continue to find other consumer causes to champion.

"It's satisfying.