5/15/2018

Defending Carbon Monoxide Exposure Claims

Win your case with a thorough investigation based on scientific methodology

By Joseph P. McGill , Jennifer A. Cupples

The Centers for Disease Control and Prevention reports that each year, more than 400 Americans die from unintentional carbon monoxide poisoning, more than 20,000 visit the emergency room, and more than 4,000 are hospitalized. Faulty installation or improper use of home and business heating equipment are frequently the root causes of carbon monoxide exposure. Since plaintiffs tend to allege permanent injuries as a result of even limited exposure to carbon monoxide, a thorough investigation based on recognized scientific methodology is recommended to develop an effective defense to carbon monoxide exposure claims.

Finding the Source

Successful claims management must begin immediately with a detailed inspection at the site that includes taking a measurement of the carbon monoxide levels in and around the scene. It is recommended, where applicable, that additional data be obtained from law enforcement and first responders. Next, the parties should identify and list the potential sources of carbon monoxide and establish a detailed condition of the valves/switches on each piece of equipment at the time of the incident so as to preserve evidence related to the claim.

In order to pinpoint the specific composition of the air/gas mixture released, preservation and testing of the gas-fired appliance is absolutely necessary. Testing of gas-fired appliances at the scene (and, if appropriate, in the lab) can provide definitive results that cannot be obtained in any other manner, but this can be, potentially, a hidden trap if the parties taking part in the testing are not sufficiently educated or experienced.

Oftentimes, installation methods are found to be out of compliance with industry or manufacturer specifications, at times involving locking bands, support straps, exhaust or intake pipes, the throttle screw, gas valve, or the gas orifice. Improper installation at the outset invariably leads to improper combustion and ventilation (by obstruction or otherwise), causing the equipment to produce carbon monoxide in excess of the permitted safe limits. If abnormal operation of a piece of equipment is suspected, ASTM International standards indicate that it is important to operate the equipment in the abnormal fashion, if possible, and then change only one operating parameter at a time while recording the results.

ASTM International standards also recommend that all individuals who have an interest in the outcome of the testing be present, including, but not limited to, the property owner, representatives of the victims, equipment manufacturers, equipment service personnel, law enforcement officers, code enforcement officers, and the insurance carrier for any of the parties. It is good practice to keep a list of who receives notice of inspections and who is present for them.

Additionally, combustion analysis of suspect equipment is central to the testing and investigation of any carbon monoxide-related incidents. The manufacturer of the equipment determines the proper fuel-to-air ratio to create safe and efficient combustion. As a result, reference to the equipment manual is necessary to confirm the proper levels of oxygen and carbon monoxide present in the flue gases. If the mixture is too rich, then combustion will be incomplete and carbon monoxide will be created. Also, improper combustion can cause audible noise due to the build-up of gas prior to ignition. While the equipment is in operation, improperly sourced air intake can degrade combustion to the point where the flame can become unstable, which can also cause system malfunctions.

Proper Defense

Retention of knowledgeable consultants with carbon monoxide exposure claims experience should be secured early in the process. Such consultants could include engineers (specializing in mechanical, plumbing, metallurgical, chemical matters, human factors, and product safety), heating contractors, toxicologists, or neurologists. These types of consultants can be ideal candidates when defending carbon monoxide claims. Active involvement in the investigation and expert analyses will provide further understanding of the defenses available in your case. Having a consultant or expert on-hand will also provide the technical guidance needed for precise questioning of opposing experts.

ASTM International provides guidance on standard practices for the investigation of carbon monoxide poisoning incidents, particularly regarding guidelines for collecting and preserving information and physical evidence. ASTM International standards are utilized by experts in evaluating scientific or technical data for examining and preparing items that are or may become involved in criminal or civil litigation. The standards provide a practice for reporting incidents that may involve litigation. The National Fire Protection Association (NFPA) also has standards that are recommended for an efficient analysis of any carbon monoxide incident, including the NFPA 54 “National Fuel Gas Code” and the NFPA 921 “Guide for Fire and Explosion Investigations.” Also of use is the International Fuel Gas Code in its reference to installation of gas appliances.

Frequently, the direct cause of a plaintiff’s symptoms is from other toxic exposure or medical problems not associated with carbon monoxide exposure. A comprehensive analysis of the claimant’s medical history, symptoms, and records must be completed to fully develop defenses to claims associated with the alleged carbon monoxide exposure and to attempt to limit the extent of any economic damages.

Other tools useful in the defense of a carbon monoxide exposure claim include the preparation of focused, written discovery and by taking depositions of key lay and expert witnesses in order to paint an accurate picture of the exposure incident for the parties, the claims representatives, and, ultimately, the jury. To protect confidentiality, the use of protective orders and evidentiary motions may be necessary to control the disclosure of competitive or sensitive information.

Defendants in carbon monoxide exposure cases usually start at a disadvantage because juries know that exposure to this toxic gas can be deadly. Developing your case with a thorough investigation and an understanding of the science behind any level of carbon monoxide exposure is essential to accurately presenting your evidence and a successful defense.

When retaining counsel, look for extensive experience in investigating and defending carbon monoxide exposure claims, since the litigation of these cases oftentimes includes strict products liability or negligence causes of action. Having counsel involved in the quarterbacking of site investigations, interviewing witnesses, and product testing inspections often helps to minimize expenses in the long run. Evaluation of liability—including investigation of general, punitive, and exemplary damages—is also essential to obtaining a realistic view of the expected exposure, should the matter proceed to trial.

 



Joseph P. McGill is a principal at Foley, Baron, Metzger & Juip PLLC. He can be reached at jmcgill@fbmjlaw.com.

Jennifer A. Cupples is a senior associate at Foley, Baron, Metzger & Juip PLLC. She can be reached at jcupples@fbmjlaw.com.

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