Sunday, December 7, 2014

Target Labels Customer as Counterfeitter Hit with Big Verdict


As a Pittsburgh lawyer who handles a lot of slip and fall lawsuits, I run into Target Corp. as a defendant from time to time.  I am fascinated by the extent of their electronic surveillance system that is maintained by their "Asset Protection," personnel.   Target is the industry leader in surveillance of its employees and patrons.  Unfortunately, Target can get a little carried away with the power their surveillance wields.  A good example is what happened in the case of Cantrell v. Target Corp.

The Cantrell case started back on Feb. 23, 2006, when the plaintiff Ms. Cantrell, a woman in her mid-50s who worked in retail sales, went shopping at a Target store. Court records reflect that Cantrell tried to pay for her purchases with a $100 bill. The cashier thought it was counterfeit, but did not tell her. He said he didn't have change for $100. He conferred with another Target employee who also looked at the bill and thought it appeared suspicious. The second employee contacted one of the store's an asset protection specialists who also examined the bill and thought it looked too crisp and too new. He contacted his supervisor, who told him to work with another loss prevention specialist. They then determined that they would not accept the bill.

The asset protection specialists returned to Cantrell, who had been waiting 10 to 15 minutes, told her they couldn't accept the bill and asked her if she had another form of payment. Cantrell was annoyed. She set down the merchandise on the counter, took her $100 bill and left the store.

The employees thought that was suspicious, so they took her photograph via a hidden surveillance camera. Another asset protection specialist, came into work. He met with the first asset protection specialist. They composed an e-mail and sent it to the Carolina Organized Retail Theft Task Force, which includes Kmart, Wal-Mart, Lowes, Home Depot, Sears and JC Penny, as well as law enforcement agencies. Her photo was attached to the e-mail. In addition, a telephone call was placed to at least one other Target store in the Greenville area giving a description of Cantrell and saying, "She's trying to pass counterfeit bills, be on the lookout for her."

Cantrell went to another Target store, where the asset protection personnel kept tabs on her on closed circuit television. She leaves the store without incident. A couple of days later, she returns to Target and pays with the bill. While on the way out the door an asset protection specialist stops and asks if she paid with a $100 bill. She says, yes, and she confirms that the bill is hers when it was presented to her. She is told the store cannot accept the bill, and is asked if she has another form of payment. She says no. She gives back the merchandise and the change, retrieves her $100 bill and leaves.

Cantrell then goes to a local bank and shows them the bill, where it's confirmed that the bill is legitimate. She then goes to her job at Belk's department store, which is also a member of the task force. The Belk's loss protection people have received the e-mail with her photo and they call Target. Target sends Belk's additional images of Cantrell, including a photo of her car, which Belk's easily matches to Cantrell's car that is parked in the employee parking lot. Belk's asset protection personnel go to a supervisor who advises them to call the authorities. Secret Service arrives. Cantrell produces the bill and it's the Secret Service quickly determines that it's genuine.
Belk's sends an e-mail to the task force saying the bill is authentic and the previous e-mail should be disregarded.

Cantrell sued Target Corp. for defamation, alleging that the e-mail was sent with reckless disregard for the truth of the allegations. Her case was expertly handled by attorney Robert Ransom.  Attorney Ransom noted that Target employees received no training to detect counterfeit bills. It also appeared that the employees at the Greenville store had violated several Target policies in handling this situation. Plaintiff's counsel asked Target what it did to make sure that those who had received the original e-mail were informed that the allegations were false. Target answered that it had done nothing to set the record straight.

Plaintiff's counsel noted that the man who sent the e-mail admitted in deposition that he had never seen the $100 bill. He admitted he didn't know whether it was counterfeit. He said Cantrell didn't fit the profile of a counterfeiter and he didn't think she'd knowingly tried to pass the counterfeit bill.
Target claimed qualified privilege, arguing that it had immunity from any defamatory e-mail it may have sent.

Plaintiff's counsel countered that Target had exceeded the proper scope of the privilege by sending the e-mail to people who had no legitimate interest in receiving that information.
Injury Text:

Cantrell claimed that she was extremely distressed, thinking that everyone knew about this accusation. She was very active in her church and a number of fellow parishioners worked at various retail stores in the area. She was embarrassed and upset and became paranoid about shopping in stores with surveillance cameras. She feared there would be another incident. She lost sleep and lost her appetite, dropping 40 pounds. Her doctor prescribed Valium to help her sleep. She sought $200,000 in actual damages and $1 million to $1.7 million in punitive damages.
Defense counsel also claimed that Cantrell's allegations of mental distress were bogus and she'd made a fraudulent claim of emotional distress.

The jury clearly did not like what they heard about Target and rendered a verdict of $3,100,000- $3 million of which was for punitive damages.

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Saturday, December 6, 2014

Target Can't Explain Missing Surveillance Footage - Hit with Verdict


Target Stores was hit with a jury verdict for failing to have proper product guards in place, which led to a woman falling and sustaining serious injuries.  Though videos and pictures were expected to exist, which would have showed the incident, Target could not explain their absence.


In the case of McFarland v. Target Corp.,  plaintiff Ms. McFarland, 50, a part-time server, was shopping at a Target retail store on Aug. 4, 2011. McFarland was in the See Spot Save dollar aisle when she stepped on a plastic placement, which had reportedly fallen from the shelf onto the floor, causing her to land on her elbow and fracturing it.

McFarland sued Target on claims of premises liability.  She was well represented by attorney Rocky Wilkins.

According to plaintiff's counsel, Target reportedly admitted that small items routinely fall onto the floor in this area of the store, and that it should have used safety guards on the shelves in this area, because the use of such guards prevented merchandise from falling onto the floor.

McFarland's counsel maintained that Target failed to use these safety guards on all portions of shelving, including the area where these place mats were stocked. Plaintiff's counsel faulted Target for negligently stocking merchandise on its shelves in a manner in which the store knew routinely resulted in merchandise on the floor. Moreover, Target had actual knowledge of an ongoing/pervasive hazard on its premises: merchandise regularly falling from shelves and creating tripping hazards for customers.
McFarland's counsel asserted that Target failed to preserve photographs taken following the incident, which resulted in the court granting plaintiff spoliation inference. The only photographs offered into evidence were taken approximately three to four months after the subject incident, which were taken by Target's attorneys. The photographs reportedly showed merchandise hanging over the edge of the shelving in areas without safety guards.

According to plaintiff's counsel, Target called no witness to definitively testify as to whether or not video footage did or did not exist; as a result, McFarland received a spoliation instruction with respect to the video footage.

The defense maintained that, since McFarland could not prove how long this particular place mat was on the floor, Target could not be liable. The defense asserted that McFarland was contributorily negligent for the accident.

McFarland was taken by her daughter to an emergency room, where she was x-rayed and diagnosed with an avulsion fracture to her left elbow. Her arm was placed in a sling, and McFarland followed up with an orthopedic surgeon.  About a month later, McFarland underwent surgical repair of her fracture, and she eventually underwent a course of physical therapy. No further treatment was administered. McFarland sought to recover approximately $55,000 in past medical expenses and about $11,000 in lost earnings.
McFarland's orthopedic surgeon testified about plaintiff's injury and the treatment that she required. The physician opined that she will require as-needed follow-up care, including therapy and orthopedic exams. She sought to recover about $60,000 in future medical costs.

McFarland said that she continues to experience pain and limited range of motion in her arm, which contains a surgical scar. She sought to recover unspecified amounts in damages for past and future pain and suffering, past and future emotional distress, permanent impairment and scarring. (Plaintiff's counsel requested $1 million in damages, in closing.) McFarland's husband sought to recover $10,000 in damages for his claim for loss of consortium.  The defense did not dispute McFarland's injuries and treatment.

 The jury determined that the defendants were negligent by failing to keep their store in a reasonably safe condition, or by failing to warn of hazardous condition of which the defendants were aware or should have been aware.

The jury determined that the defendants' negligence proximately caused McFarland's injuries, and that McFarland was 20 percent liable for causing her own injuries.

The McFarlands were determined to receive $500,000, which was accordingly reduced to $400,000.


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Thursday, December 4, 2014

Verdict Against Target for Soap Spilled by Employee

Target Corporation was found responsible for slip and fall injuries in the lawsuit of Sapp v. Target Cor.  This slip and fall lawsuit began on Oct. 31, 2008, when the plaintiff, Mr. Sapp, an unemployed 48-year-old man, was walking in a Target store.  While shopping he slipped and fell on liquid soap. Sapp suffered injuries to both knees.  He sued Target for premises liability.

Sapp contended that one of Target's employees spilled liquid soap on the floor and failed to follow any of Target's procedures for warning of a spill, such as placing a cone down.  Target denied responsibility and argued that Sapp was distracted when he was walking and did not observe the spill.  Target forced Mr. Sapp to trial where he was well represented by attorney J. Scott Gunn.


Sapp complained of immediate left knee pain, but did not have complaints of right knee pain until about one month after the fall.  In fact, Sapp suffered a torn meniscus in each knee. He underwent four arthroscopic surgeries, two to each knee. Defense counsel conceded the left knee was injured in the fall. Counsel also agreed that the submitted medical bills were reasonable.

Target hired an orthopedic doctor to mitigate Mr. Sapp's claim for dmages.  Target's hired doctor opined that the extra pressure on the right knee caused by using a crutch would have caused right knee pain, but not damage to the meniscus.  Target attempted to use this opinion to contend that the delay in pain in the right knee meant Sapp's knee was not injured in the accident.  The jury did not buy into Target's argument.  After three hours of deliberation, the jury returned a verdict of $230,802.  The verdict was comprised of $50,802 Personal Injury: Past Medical Cost; $80,000 Personal Injury: Past Pain And Suffering; and $100,000 Personal Injury: Future Pain And Suffering.



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Wednesday, December 3, 2014

Target Store Slip and Fall Verdict


This slip and fall in a Target store occurred on July 21, 200.  Plaintiff Ms. Walker, 40, a retail clerk, was in a Target store in the Philadelphia area when she slipped and fell in one of the aisles.  When Target refused to pay fair compensation for her injuries, attorney Ed Chacker took Target to trial before a jury and got a great verdict

Claiming premises liability, Walker sued Target Stores Inc. and Target Corp. Walker argued that a pharmacist on duty at the time of the incident was in the aisle when a customer reported a spill. After being notified, the pharmacist abandoned the spill to retrieve warning cones. In the meantime, Walker walked down the aisle unaware of the spill.  Walker then slipped on the spilled liquid.  Walker's attorney argued that the pharmacist was negligent for choosing to leave the hazardous spill unguarded in the aisle and for failing to warn Target's customers like Walker.

Target, of course, denied the allegations. Instead of accepting responsibility, Target blamed Walker for not paying attention to where she was walking.

The day after her fall, Walker woke up with a severe headache. She visited her family physician, complaining of dizziness, blurred vision and pain in her back, left foot and left elbow. She had a CAT scan, which came back as normal. Soon after, she had an EMG and was diagnosed with a status post-cerebral concussion, lumbar strain and sprain, right C5 and left L5 radiculopathy, bilateral C8 and right L5 radiculopathy, right epicondylitis, sprain of the plantar fascia of the left foot and post-concussion syndrome. She began physical therapy, which she underwent through May 2004.
A year after the accident, Walker still complained of blurred vision, headaches, neck and upper back pain, and some numbness and tingling in her upper extremities and lower left leg. She saw neurologist Steven Mazlin for ongoing treatment. Mazlin testified that Walker's condition resulted from her slip and fall, and that the fall exacerbated a previously quiescent migrainous disorder and "unmasked a case of so-called latent MS."  Walker was also diagnosed with a disc bulge at L5-S1, for which she underwent chiropractic treatment from February 2004 to February 2006. In 2006, she received three Lidocaine injections and was fitted with orthoses.  She was also diagnosed with depression and anxiety.

Walker sought $54,420 in past medical specials and $9,761 in past lost wages, having missed 18 weeks of work. She sought an unspecified amount for past and future pain and suffering.

The jury rendered a verdict in Walker's favor of  $250,000


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Tuesday, May 20, 2014

Verdict in Oil and Gas Fracking Nuisance Lawsuit

In follow up to my recent post on Pennsylvania private nuisance lawsuits to battle harms caused by oil and gas fracking I stumbled upon a recent $3 million verdict in Texas on a nuisance lawsuit.  Here are a few links to articles about the notable nuisance case, one of the first of its kind (most of these lawsuits are settled before trial):

Fracking Went On Trial

Texas Family's Nuisance Complaint Seen as a Win Against Fracking

 Jury Awards Texas Family $2.9M For Fracking Nuisance Claim

Law360.com reports that the Parrs (the injured family) had sought damages from Aruba Petroleum Inc., alleging the 22 wells Aruba operated within a two-mile radius of their land exposed them to hazardous gases, chemicals and industrial waste that made them so sick they couldn’t work and at times had to live in Bob Parr's office instead of at their home. The Parrs attributed their illnesses to benzene, toluene, ethylbenzene, xylene and other volatile organic compounds used to frack the wells, and said their home had been assaulted by smells and noise from the wells since drilling started.

Reports indicate that in a 5 to 1 verdict, the jury did not find Aruba’s conduct was abnormal and out of place for its surroundings but said it did take intentional steps to cause substantial interference with the Parr family’s use of its 40-acre homestead west of Fort Worth. The jury did not find Aruba acted with malice, and rejected the Parrs’ claim for exemplary damages, but awarded them damages for physical and mental pain and anguish and for loss of market value for the land.  The Parrs were represented expertly by Texas trial attorney Brad Gilde of Gilde Law Firm based in Houston, Texas.

There is little doubt with all of the oil and gas drilling occurring right now in our state that many Pennsylvania residents are experiencing the same type of symptoms as the Parrs.  Because of this amazing verdict oil and gas companies will hopefully take notice of the risk they face from substantial verdicts if they do not safely undertake their oil and gas fracking.

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Monday, May 19, 2014

Pediatrician Criticizes Fisher Price Rock n' Play Sleeper - Provides Grounds for Lawsuit?

Pediatrician's critique of Rock n' Play Sleeper May Provide Basis for Child Injury Lawsuit

As a parent of two small children I was quite interested to learn that Fisher Price's Rock n' Play Sleeper was the subject of a compelling article authored by pediatrician Natasha Burgert, MD titled, Dear Fisher Price...

As a pediatrician and parent, Dr. Burgert felt it was irresponsible for Fisher Price to promote the Rock n’ Play™ Sleeper as an safe, overnight sleeping option for infants. 

Dr. Burgert's concern focused on three particular infant safety issuesleading her to conclude that the Rock n’ Play™ Sleeper should not be used for extended, unobserved infant sleep for the following reasons. First, design features of this product are known to increase the risk of sudden infant death syndrome (SIDS). Second, there is a possible connection with extended sleep in teh Rock n' Play and the development of infants with brachycephaly/plagiocephaly and torticollis as a direct result of using this product. I have written about plagiocephaly previously here.  Finally, infants are often left with poor sleep habits that continue long beyond the product’s use.  Keep in mind that these critiques are from a highly qualified pediatrician who took it upon herself as a doctor and mother to publicly voice her concern about this product.

Dr. Burgert's article was followed up by another pediatrician, Roy Benaroch, M.D. in 2013 titled, "The Fisher-Price Rock ‘n Play Sleeper is NOT for sleeping."  Dr. Benaroch echoed the same concerns as Dr. Burgert and concluded that the current language of the Rock n' Play remains inconsistent with the American Academy of Pediatrics published detailed guidelines about safe sleeping environments for babies.  Dr. Benaroch's takeaway as of April 2013 was that, "the Fisher-Price Newborn Rock ‘n Play Sleeper does not meet the standards established by the AAP for safe sleep. Parents, do not leave your babies sleeping in this gizmo. Their safety is too important."

From what I can tell, since Dr. Burgert authored this article in 2012, Fisher Price has slightly modified the language in its promotional materials for the Rock n' Play.  The current language on the Fisher Price website states, in part:  "The seat is also inclined, which makes napping more comfortable for babies who need their heads elevated.  And with help from mom, baby can rock the day away--soothe, nap or play."  Fisher Price seems to now stress that the Rock n' Play is only for napping during the day.  Nevertheless, it appears that Dr. Benaroch believes the revised language remains out of line with current Pediatric recommendations.

Moreover, on Amazon.com, however, where the product is actively marketed and sold, the product description is much different, stating, "The Fisher-Price Newborn Rock 'n Play Sleeper provides a comfortable, safe place for baby to sleep overnight, or a convenient place for baby to relax during the day."  This suggestion that babies may safely sleep overnight in this product runs afoul of the suggestions of Dr. Burgert.

The bottom line from this blog's perspective is that any parent whose child has developed a head deformity or worse that they feel is related to the Rock n' Play should first consult their pediatrician and second consider consulting an attorney.

___
The seat is also inclined, which makes napping more comfortable for babies who need their heads elevated. And with help from mom, baby can rock the day away—soothe, nap or play! - See more at: http://www.fisher-price.com/en_US/brands/babygear/products/51903#sthash.kjz6nAsT.dpuf
The seat is also inclined, which makes napping more comfortable for babies who need their heads elevated. And with help from mom, baby can rock the day away—soothe, nap or play! - See more at: http://www.fisher-price.com/en_US/brands/babygear/products/51903#sthash.kjz6nAsT.dpuf
The seat is also inclined, which makes napping more comfortable for babies who need their heads elevated. And with help from mom, baby can rock the day away—soothe, nap or play! - See more at: http://www.fisher-price.com/en_US/brands/babygear/products/51903#sthash.kjz6nAsT.dpuf
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Intertek Testing Services Hit with $6 Million Verdict for Faulty Safety Testing


Intertek Testing Services Hit with $6 Million Verdict in Botched Safety Testing Lawsuit 

$5 Million in Punitive Damages Assessed

Below is the pretrial statement I filed on behalf of my client, Pittsburgh-based Brand Marketing Group in a lawsuit that resulted in a $6 Million verdict against Intertek Testing Services.  Most of the court record is available through the western district's PACER website.


Here is a link to an article in the Pittsburgh Post-Gazette about the case- O'Harra Firm Wins $6 Million Verdict.  Here is another article that appeared in the Legal Intelligencer- In Space-Heater Testing Suit.  Not surprisingly, Intertek is appealing the verdict and seeking to limit the amount of damages rendered against it.

PRETRIAL

The American National Standards Institute (ANSI) establishes standards for commercial products that help assure the safety and health of American consumers.[1] ANSI standards are a technical expression of, among other things, how to make a product safe.[2] To assure compliance to applicable ANSI standards, companies have their products checked by third party agencies.[3]

The Defendant, Intertek Testing Services, N.A., Inc., d/b/a Intertek Testing Services (“Intertek NA”), is a third party testing agency with the power to determine whether a given product meets legally mandated safety requirements for sale in the United States. Appendix Ex.24 (“Curkeet Depo.”) 66:18-25; 67:1-18.[4] Companies depend on Intertek NA to ensure the safety of their products.[5] Appendix Ex.6. In turn, product safety testing assures consumers that products in their homes such as smoke alarms and carbon monoxide detectors, are safe.[6] Appendix Ex.5. Compliance with safety standards helps avert company and community catastrophes. With Intertek NA’s great power comes the responsibility to make sure that its product safety testing procedures are performed properly by engineers with sufficient training, knowledge and experience. Curkeet depo. 55:1-16.

Plaintiff, Brand Marketing Group, LLC d/b/a Thermablaster (“Brand”), is a limited liability company based out of Pittsburgh, Pennsylvania, owned solely by David Brand. Brand imports and sells vent free gas heaters in the United States under the brand name “Thermablaster

Intertek NA, is a subsidiary corporation of Intertek Group, PLC (“Intertek Group”), a multinational inspection, product testing and certification company “with over 35,000 people in 1,000 locations in over 100 countries.”[7] Intertek Testing Services Shenzhen, Ltd., (“Intertek Shenzhen”) is a separate corporate subsidiary of Intertek Group located in Guangzhou, China. The Guangzhou laboratory (“Guangzhou lab”), where the product safety testing here at issue took place, is a branch of Intertek Shenzhen. Appendix Ex. 25 (“Starr Depo.”) 24:15-23.

On July 4, 2010, prior to Brand’s involvement, Intertek NA executed a testing and Certification Agreement with Chinese manufacturer, Reecon M & E Co. Ltd., (“Reecon”) related to heaters separate from the Thermablaster. Appendix Ex. 3.

In December 2010, following an indication of intent to purchase Thermablasters by Ace Hardware Corporation (“Ace”), Brand contacted Reecon regarding large-scale manufacture of the heaters. Second Amended Complaint ¶ 21, 23. Brand received purchase orders from Ace on April 26, 2011.[8] Appendix Ex.7. Brand then learned of the need to have the Thermablasters safety tested to the ANSI standard Z.21.11.2B.2b (“ANSI Z.21.11.2B”). Appendix Ex.2 (“Brand Aff.”) ¶3. Contemporaneously, Brand attended a Hearth, Patio & Barbecue Expo wherein he encountered a vendor booth maintained by Intertek NA employees. Brand Aff. ¶5,6. Brand was advised that Intertek NA could perform the needed testing. Brand Aff. ¶9. Brand was provided a promotional flyer that advised of Intertek NA’s experience testing hearth products and to visit Intertek NA’s website at www.intertek.com for more information. Appendix Ex.26; Brand Aff. ¶10 .

Intertek NA’s Misrepresentations

Brand visited www.intertek.com and saw, inter alia, Intertek NA’s representation of expertise in testing products to any ANSI standard.[9] Brand Aff. ¶13-15. Resultantly, Brand acquiesced to Reecon’s plan for Intertek NA to test the Thermablasters. Brand Aff. ¶16. The definition of “expert” is “having, involving, or displaying special skill or knowledge derived from training or experience”. With respect to testing products to ANSI Z.21.11.2b, Intertek NA possessed no knowledge, training or experience. Intertek NA falsely represented itself.

The Thermablasters were tested at the Guangzhou lab. Starr Depo. 42:2-7. The Guangzhou engineers conducted two tests to determine compliance to ANSI Z.21.11.2B, an ITS Construction Review and a Test Data Sheet (“Safety Tests”). Curkeet Depo. 61:16-25; 62:1-7; 159:1-9. The Guangzhou lab determined that the Thermablaster complied with all requirements of ANSI Z.21.11.2b. Appendix Ex.13,14. The Safety Tests were completed by July 22, 2011. Id. Shortly thereafter, the Guangzhou lab forwarded the Test Data Sheet to Reecon. Brand Aff. ¶22.

Coincidentally, Brand visited China from July 21, 2011 through July 27, 2011 to tour Reecon’s factory. Appendix Ex. Brand Aff. ¶20. On July 25, 2011, Brand was shown the Test Data Sheet. Brand Aff. ¶22. Brand saw that the heaters had been found to comply with all facets of ANSI Z.21.11.2b. Brand Aff. ¶23. After learning of the Thermablaster’s compliance, on July 26, 2011, Brand executed a purchase order for more than 5,000 heaters from Reecon. Appendix Ex.10,11; Brand Aff. ¶20. In October and November 2011, Brand shipped Thermablasters to the United States.

Intertek then issued a Test Report (“Test Report”) that reiterated the findings of compliance with ANSI Z.21.11.2b. Appendix Ex.15. Brand subsequently delivered the heaters to Ace. On February 29, 2012, Intertek NA issued an Authorization to Mark (“ATM”) for the Thermablaster. Appendix Ex.16.

Discovery of Intertek NA’s False Statements

Intertek NA’s representations of expertise, results of the Safety Tests and Test Report were false. Appendix Ex.18; Curkeet Depot. 57:6-14 Following allegations of noncompliance by Ace and Brand’s competitor ProCom, Intertek NA undertook an internal investigation that revealed that the Thermablasters did not comply with ANSI Z.21.11.2b.[10] Appendix Ex.18.

Following Intertek NA’s compliance investigation, Curkeet, by email dated March 16, 2012, wrote “This was obviously GZ’s first project related to ANSI Z21.11.2. Clearly training and experience are lacking.” (Emphasis added). Appendix Ex.21. The same day, Graham Moxon, overseer of the project, stated via email that the Guangzhou engineers incorrectly approved the Thermablaster due to, “lack of knowledge of the product, training and interpretation of the specification.” (emphasis added) Appendix Ex.20. Curkeet testified that not only had the Guangzhou lab never tested to ANSI Z.21.11.2B before but that none of Intertek NA’s laboratories had ever tested a product to ANSI Z.21.11.2B before the Thermablaster. Curkeet depo. 57:6-14. Clearly one cannot truthfully claim to be an expert in something one has never before done.

The Safety Tests were false. An email from Moxon, on March 8, 2012, advised that at least two full sections from ANSI Z.21.11.2B were incorrect due to misinterpretation. Appendix Ex. 27. Worse yet, the Test Data Sheet, used by the Guangzhou lab in testing the Thermablaster was for the wrong standard. Appendix Ex.14; Curkeet Depo. 163:11-17; 166:10-20. Instead of the ANSI Z21.11.2b standard for vent free wall heaters, the Test Data Sheet was based on ANSI Z21.58- a standard relevant to Outdoor Cooking Appliances.[11] Id. Thus, instead of being tested to the requirements of the correct safety standard, the Thermablaster was tested to irrelevant standards including on for, “Combustion Open Top Broiler”. Id.

After learning that the Thermablasters did not comply with ANSI Z.21.11.2b, Ace requested a full refund from Brand. Ace then filed a lawsuit against Brand and obtained a default judgment for $611,060.45. Appendix Ex. ¶22. Brand has also lost all future business with Ace.

Brand will prove at trial that Intertek NA, negligently and fraudulently misrepresented itself to Brand’s detriment causing it damages as discussed herein.




[1] http://www.ansi.org/about_ansi/overview/overview.aspx?menuid=1#.UZTos8qZGjY


[2] https://www.ansica.org/wwwversion2/outside/PROfaq.asp?menuID=1


[3] http://www.iso.org/iso/home/faqs/faqs_conformity_assessment_and_certification.htm; see also https://www.ansica.org/wwwversion2/outside/PROfaq.asp?menuID=1


[4] All references to the record relate to the Appendix of Docket No. 78.


[5] http://intertek.com/about/


[6] http://intertek.com/product-safety-testing/


[7] http://intertek.com/about/


[8] Brand received initial purchase orders from Ace in April 2011. Brand then received revised purchase orders from Ace in June 2011with a May 2011 shipment date that was subsequently revised to November 2011.


[9] http://www.intertek.com/product-safety-testing/


[10] Intertek NA never discovered the noncompliance issue on its own.


[11] http://shop.iccsafe.org/ansi-z21-58-2007-csa-1-6-2007-outdoor-cooking-gas-appliances-pdf-download.html
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