Monday, May 19, 2014

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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