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Steel Tubing Maker Triumphs Over Fire Risk Class Action

January 10, 2014

Law360
By Andrew Scurria

Corrugated stainless steel tubing maker Titeflex Corp. on Tuesday defeated a putative class action alleging its Gastite system puts homes at risk of fire when a Massachusetts federal judge said the plaintiff faced only a speculative danger of property damage or bodily harm.
U.S. District Judge Michael A. Ponsor axed the negligence and strict liability lawsuit from plaintiff Tim Kerin, finding that he lacked standing to assert that Gastite can fail catastrophically and cause natural-gas-fueled fires in the event of a lightning strike because the Gastite in his home had never malfunctioned.

In so ruling, the judge relied on jurisprudence from the U.S. Supreme Court’s Clapper v. Amnesty International Inc. ruling that required threatened future injuries to be “certainly impending” in order to bestow a plaintiff with Article III standing, according to the order.

“The capriciousness of a lightning strike is the stuff of folklore,” the judge said. “The possibility of some negative consequences arising from this genus of caprice is so speculative that it simply cannot provide a foundation for a claim in federal court that satisfies the requirements for Article III standing.”

Kevin T. Peters of Arrowood Peters LLP, who represents Kerin, told Law360 that his team would appeal the ruling to the First Circuit and noted that the case implicates an “evolving” area of Massachusetts tort law.

“We believe that when one buys a product that’s dangerously defective, you have standing to seek a remedy and don’t have to wait until the product causes either property damage or personal injury,” he said.

Other corrugated stainless steel tubing makers like Omega Flex Inc. are facing similar litigation. The products, introduced in the late 1980s, transport natural gas and propane within residential and commercial structures as a cheaper alternative to black iron pipe.

The suits generally allege that as energy from a nearlightning strike seeks a path to the ground, it can jump off different pipes and create brief temperature bursts of thousands of degrees, hot enough to puncture the tubing structures and ignite fires, citing warnings from fire departments and roughly 150 purported incidents over the past decade.

Kerin, who lives in Florida, brought claims for strict liability for design and manufacturing defect and failure to warn plus negligence in design and testing and failure to warn, and is seeking costs associated with upgrading his system to make it safer.

The company shot back with arguments that he lacked an injury-in-fact and that his suit was barred the economic loss doctrine given its failure to allege economic damages unaccompanied personal injury or harm to property. Moreover, Massachusetts law does not impose strict liability for allegedly defective products outside of a breach of warranty claim, which Kerin did not plead, according to its motion to dismiss.

Siding with Titeflex, Judge Ponsor noted that under Kerin’s theory injury or property damage would only occur if multiple conditions were met and said that the “strand of conjecture” to support his causes of action was too attenuated.

Moreover, the plaintiff failed to allege a standard which to evaluate Titeflex’s alleged breach of its duty of care, the judge said.

According to the opinion, only products that fail government standards can form the basis for an economic injury claim under Massachusetts tort law, while the plaintiff had conceded that Gastite had not been found to violate “any applicable regulatory standard.”

Omega Flex has a motion to dismiss pending in a similar Florida class action. Meanwhile, the Pennsylvania Supreme Court has taken up an appeal of a $1 million verdict that was issued when a jury blamed defective Omega Flex tubing for a 2007 house fire.

Titeflex is represented Jeffrey E. Poindexter and Jodi K. Miller of Bulkley Richardson and Gelinas LLP, and Charles B. Casper and John G. Papianou of Montgomery McCracken Walker & Rhoads LLP.

The plaintiff is represented Kevin T. Peters of Arrowood Peters LLP, Gary E. Mason and Daniel K. Bryson of Whitfield Bryson & Mason LLP, Rachel Soffin of Morgan & Morgan PA, Charles J. LaDuca of Cuneo Gilbert & LaDuca LLP, D. Aaron Rihn of Robert Peirce & Associates PC, and Joseph S. Bellissimo of Bellissimo & Peirce.

The case is Kerin v. Titeflex Corp., case number 3:13-cv-30141, in the U.S. District Court for the District of Massachusetts.

–Editing Jeremy Barker.