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Oklahoma Factory Closing Sparks Tort Reform Debate

November 7, 2012

On October 4, The New York Times published an article in which the author, Clifford Krauss,discusses the closing of a gas can factory operated by Blitz USA, formerly the largest manufacturer of its kind in the United States. Blitz sold 14 million units a year for a decade, but in recent years those at the company have seen over 60 lawsuits filed against them. Over the summer, a factory of theirs that employed more than 100 workers closed, and executives blame legal fees for the closure.

Blitz’s cause was then taken up by the United States Chamber of Commerce, which sounds like a governmental organization but is decidedly not. Rather, it is the largest pro-corporation and pro-business lobbying group in the country with a board of directors that includes executives from Pfizer, ConocoPhillips, Dow Chemical, Lockheed Martin, Altria/Philip Morris and the American Medical Association. This blog has posted several articles mentioning the influence the group exerts over politicians and judges across the country through its lobbying and campaign financing.

The U.S. Chamber of Commerce produced a video showing employees distraught about losing their jobs and the factory ceasing operations, but it totally ignores the fact that Blitz cans may be to blame for many injuries, burns and even deaths due to a design flaw. Most of these injuries were sustained in an event called a “flashback,” in which gasoline vapor ignites and then the flame follows the vapor trail into a gas can, causing an explosion. Consumer advocacy and safety groups insist that by installing a flame arrester (a piece of wire mesh that prevents flames from entering a container) many of these injuries could have been prevented. Rather than focusing on this, the Chamber shifted blame to personal injury and product liability attorneys.

In the course of litigation, a 2005 document written by Rocky Flick, Blitz’s chief executive, was produced suggesting Flick knew the dangers of not using flame arresters and wanted to introduce them into their products by 2007. Despite its apparent recognition of the dangers of its product, the company argued that many accidents associated with Blitz cans were due to misuse, like people pouring gasoline onto open flames, which is never a safe thing to do. Complicating issues even more, it turns out that Blitz and other companies like it tried to have their manufacturing regulated by the Consumer Product Safety Commission, but were denied because they did not provide proper documentation. Muddling things even more are the terrible stories of personal pain and tragedy brought on by this potential design flaw in Blitz cans.

Krauss rightly points out that the way we view the tort reform debate is framed in sharp black-and-white arguments with no room for nuance: “In interviews, the company and the lawyers suing it seek to frame the conflict in stark terms: devious lawyers with spurious claims piling on a valuable manufacturer, or a greedy company hurting consumers by refusing to fix a defective product.”

In reality, both sides of this issue have some constructive arguments to make: gas cans are inherently dangerous and legal controversy is almost inevitable; at the same time, many people have used Blitz’s products in reckless and dangerous ways. The debate has continued, often in an irrational and propagandistic way that does not allow for constructive conversation, let alone better policy. Perhaps when these two sides are able to put aside petty name-calling and focus on the safety and satisfaction of both consumers and employees, we will begin to see less demonization of both corporations and attorneys.

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