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Bleichner and Finateri Silbiger Score Major Success for Furnace Manufacturer

Brad Bleichner and Lynn Finateri Silbiger had to hit the ground running when they joined Berkes Crane Robinson & Seal in early June. They started a four (4) week jury trial almost immediately on a high profile product liability case. Mr. Bleichner was lead counsel for the furnace manufacturer. The jury in Santa Monica came back on Friday July 11th after four (4) hours of deliberation with a verdict that was a win for the defense.

The case was an admitted liability case for a manufacturing defect that resulted in a claim that the burning circuit board pumped poisonous chemicals through the furnace system into the house. Plaintiffs' counsel blackboarded $2.7 million for the remediation work due to the alleged "contamination" damage to his client’s home, personal property and for 32 months of rental in furnished houses in Beverly Hills and Bel Air, while their house was being renovated. This included a $1.5 million subrogation claim from the plaintiff’s homeowners insurance, who was a co-plaintiff, once the cases were consolidated for trial.

Plaintiffs also claimed injury for environmental asthma from the “contamination.” Plaintiffs' counsel requested the jury award almost $1 million for the injury. Plaintiffs' counsel also asked the jury to award punitive damages in the amount of $45 million against the two large corporations. This was based upon claims of prior smoke damage claims from the same model of circuit board. Plaintiffs claimed that a recall was necessary and that by failing to recall, the defendants had committed malice.
Rather than awarding over $48 million as requested by plaintiffs, the jury awarded $213,700 for the property damage, $5000 for the medical bills and most importantly zero for punitive damages. Pursuant to the indemnity agreement, Mr. Bleichner's client ultimately had no responsibility for any of the damages.

Defendants were able to systematically attack the extent of smoke damage to the house both through lay witnesses and the expert testimony of Dr. Mack Quan, its mechanical engineer. Dr. Quan used an exemplar furnace and his testing to demonstrate the small of amount of smoke that could get from the separate circuit board compartment into the blower and into the house.

The defense then attacked the lack of hazardous chemicals in the house through their chemist/toxicologist/environmental safety expert Dr. Edward Faeder. Dr. Faeder identified and quantified the chemicals released from the circuit board and its wiring. Dr. Faeder then opined that the chemicals released did not create a risk of harm, since they were all well below acceptable standards. If the smoke did not permeate every nook and cranny of the house, as was claimed, then there was no need to take the house down to its studs, removing all of the interior and all but one exterior wall, removing all of the tile floors, kitchen & bath tiles, roof, appliances, electrical and plumbing systems etc. and to consider all of their personal property a total loss.

Cross examination of plaintiff witnesses left the impression in the jurors minds that plaintiffs were overreaching, attempting to unreasonably “modernize” their house to “Brentwood standards” and that they pressured the claims handler, from their homeowners insurance company, into paying them $1.5 million in policy limits with no testing or basis to support such aggressive remediation.

Dr. Robert McCunney, a Board Certified Doctor of Occupational Medicine, provided compelling testimony that plaintiff did not have asthma and that her symptoms were more likely caused by her smoking history.

Michael Brown, former General Counsel and Executive Director for the U.S. Consumer Product Safety Commission and an expert in product safety testified that there was no risk of substantial bodily harm from smoke from a smoldering circuit board. At the time that the product was discontinued in 2008, there had been no claims of any kind and there have been no smoke related claims since 2011. This was the only incident where a person claimed injury from the smoke. As such, it was Mr. Brown's opinion that there was no reason to recall the 370,000 circuit boards that had been sold.

The jury unanimously declined to award any punitive damages against the furnace manufacturer. Finally, the jury unanimously declined to award damages for Breach of Warranty under the Song Beverly Act. This was an attempt by plaintiffs' counsel to obtain double damages and attorney fees by proving that the product was not merchantable at the time of the sale.

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