Facts

While trying to light a campfire with a handheld torch attached to a MAPP gas cylinder on April 21, 2006, plaintiff Andrew Shalaby, an attorney, was injured when the cylinder exploded.

Plaintiff brought suit against BernzOmatic, a division of Irwin Industrial Tool Company, and the retailer Home Depot Inc. for products liability. The cylinder manufacturers were brought in as third-party defendants.

The torch was unavailable for analysis at trial because the camp rangers threw it away after the fire department told them it did not have to be kept. Thus, camp rangers could only testify as to the appearance of the torch after the incident.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that the torch was defectively designed and/or manufactured. The torch contains a "fracture groove" designed to fracture and prevent failure of the cylinder if force is applied to the tip of the torch. When plaintiff tapped the tip of the torch, the cylinder failed.

Plaintiff was not at fault and did not kick the cylinder into the fire - this was even supported by the defense expert. Plaintiff did not bang the torch against a campfire ring, nor use the torch to light a water heater. Furthermore, there were no witnesses to the incident.

The eventual disqualification of plaintiff's expert witness was due to a late supplemental expert report submission, not on the merits of the expert.

Plaintiff claimed the product is hazardous and has injured many since the 1980's.

DEFENDANTS' CONTENTIONS:
The defendants contended that the incident was caused by the plaintiffs' misuse of the torch. The defense claimed that plaintiffs' theories for the incident were inconsistent with witness observations. Bystanders said that he banged the torch and cylinder on the ring around the fire pit. Defendants also claimed that plaintiff told rangers and paramedics that he kicked the canister into the campfire. The torch and canister would have to be subjected to extreme force in order to fail, thus establishing the bystander's theory as the correct account of what happened. Also, plaintiffs' experts did not meet minimum standards because the testimony was unreliable and irrelevant. Without the experts, plaintiffs could not establish a prima facie case.

Injuries

The plaintiff claimed burns to 20 percent of his body, including his arms, legs, and ears. This resulted in 21 days of hospitalization and multiple skin grafts. He also claimed residual pain and scarring.

Result

A summary judgment order was found in favor of the defendants due to disqualification of an expert witness. According to plaintiff, the dismissal was based on technical grounds only.

Other Information

The case is on appeal in the Ninth Circuit. Other similar cases dealing with BernzOmatic are pending, according to plaintiff.