EP 618- Intake Analysis and Workup of a Product Fire Case Part One

Episode Notes

Transcript

Announcer:

Welcome to The Jury is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm and St. Louis attorney Erich Vieth

Erich Vieth:

Welcome to another episode of The Jury is Out. I’m Erich Vieth

Tim Cronin:

I’m Tim Cronin.

John Simon:

And I’m John Simon.

Erich Vieth:

Today’s topic is client intake. Tim, you’re going to take us into the topic.

Tim Cronin:

So what I thought would be an interesting idea, and John and Erichhave not seen this until I just handed it to him right before we started, was to take a sample intake and then kind of walk through what your initial thought process would be about. Whether you want to take it, look into it, and if so, what you need to jump on and do right away and kind of what your plan would be to work up the case. So here’s the intake. I just read that you guys are just now reading at the same time. Two days ago, and this would be you get an email or a phone call to intake and this is what you’re told. Two days ago in the middle of the night, my elderly parents had a fire in their home and they both died. My dad never made it out of bed, but my mom made it out only to discover that her husband was still trapped in the burning house calling for help that would never arrive.

She’s in the hospital now and we’re concerned that while she’s getting extensive treatment for her burns and she has severe third degree burns, she may succumb to her injuries. My sister was staying with them and made it out, but with severe injuries. They’d recently gotten an electric hospice bed rented for my dad who had cancer and was told he had a few months to live. The bed had been installed at the house in the master bedroom against the West Wall only a few weeks ago. I have eight siblings, all adults and many grandchildren mourning their loss. We’re an extremely close family. My parents live in a house that we built for them on my property so I could watch over them more closely, and my sister was staying with them at the end on the couch while my dad was very sick, the remainder of the family was regularly, almost constantly over at the house to visit and provide assistance to my parents.

I’m not sure if it’s important, but my dad was a smoker, but he never smoked lying in bed and he had pneumonia at the time, so he hadn’t been smoking for a week. There was no ashtray in the bedroom. He always smoked in the living room. My parents were both also on oxygen, but we don’t think there was any oxygen tanks in the bedroom. For some reason, we heard the coroner or a first responder has said he heard my dad was smoking in bed at the time and it caused the fire, but nobody from my family would’ve said that The state fire marshal who investigated the scene that evening has a preliminary conclusion that the fire began in the bedroom. There were no other electrical appliances plugged in that room. To my knowledge, no history of electrical problems with the house. The fuel to heat the home was propane, but it didn’t run through the master bedroom again, while both used oxygen and there were tubes, we don’t think there were any tanks, tubes, or concentrators in the bedroom.

I imagine the defense will try to say he was smoking and it could have caused the oxygen to explode, but there was no explosion. I awoke that night to hear my sister yell, fire, fire, help. I sprint into the house and saw fire coming from the master bedroom. My mom was on the front porch with my sister putting out flames on her legs. We couldn’t get in due to the size of the fire and the smoke to get my dad. We never heard him scream from the porch. I could see the bedroom through the bedroom window and I saw the foot of the hospice bed on fire along with the middle of the wall next to it. There were no flames in any other part of the house. By the time the fire crews arrived to the house, it was fully eng engulfed in flames. So that’s all you get when you get an intake. So John, what’s the first thing you would do? Probably get on the phone and talk to the client.

John Simon:

First thing is you want to get as much information as you can from the client. I guess my first reaction overall is this is potentially a very, very significant and serious case. So this is something that certainly deserves attention and investigation and right off the bat, this is something that we’re going to spend some time and money on to look into very carefully. So that’s the first question is do you even want to look at it? And I think the answer to that, based on the injuries and the information about the electric hospital bed, there is certainly enough, there are more than enough to get our commitment to look

Tim Cronin:

Into it. Cases in general and fire product cases are very expensive in time consuming. So there has to be significant damages in order to look into it.

John Simon:

So the first thing I would do is obviously call the client and spend some time with the client or anybody else in the family, get as much information as you can. You want that to include not just what they know about their parents, the smoking habits, the house, electrical cords, prior electrical problems, but anybody that they’ve talked to. And what that’ll do is they’ve probably talked to a dozen different people, ambulance personnel, fire department folks, police, sheriff’s office. And so you want to get a comprehensive list of every single person, identify anybody and everybody who was at that scene. The very, very first thing on your mind should be preservation of the scene. That’s a must. So what you need to do is you need to make sure that nothing happens. Nothing is disturbed, nothing is removed. The insurance company doesn’t come in and tear it down or bulldoze it. You’ve got to prove the cause and origin of that fire. That’s one of the things you will have to prove in the case. In order to do that, nothing can be disturbed. There’s all kinds of intricate things like fire patterns and experts can tell by the markings on the wall, by the burn patterns on the floor, the ceiling where it started, it’s an entire scene investigation that’s going to take a lot of time,

Tim Cronin:

More than almost any other case. You have to get on it

John Simon:

Immediately, immediately, immediately. And so you need to contact your client, still own the home. So you may have to deal with some of the local first responders and all this, and you want to find out what’s been cleaned, what’s not. But primarily the first thing is you need to secure the scene. You need to get an expert and get on it quickly. Now here’s the other thing to keep in mind. In a case like this,

Tim Cronin:

You want a good season testifying cause an origin expert because everybody can take the different patterns and interpret different

John Simon:

Things. But here’s the other thing too, to keep in mind that makes it even more difficult is you’ve got to put on notice every single possible defendant you can think of because you don’t want to go in there with an expert, start moving things around, start doing anything at all unless everybody’s there and everybody’s on

Tim Cronin:

Board, you’ve got to put everybody on notice and they all need to be there.

John Simon:

And you don’t know who that is in the beginning. You have the product you might need to include the folks delivered it, the folks that set it up, the manufacturer.

Tim Cronin:

You might not even know if there’s a component manufacturer of the control box on the bed, but you got to try to

John Simon:

Find out. So I think scene preservation number one, get as much readily available information from your client and then the next step would be secure the scene. You need to secure it, you need to put the other folks

Tim Cronin:

On notice. A lot of times the first responders when putting out the fire, they may have already started shoveling stuff,

John Simon:

No

Tim Cronin:

Question and putting into bins. Yep, no question. You need to send a preservation letter out to all of ’em, the fire department, the police department, the state fire marshal investigator, because you’ll be able to then set up inspections to sift through all that too later.

John Simon:

You want to preserve everything from everybody. The other thing too is you want to get the investigative reports from whoever investigated the fire, the fire department. There might be a chief investigator from the county or the city. There’s a problem with that is those don’t come anytime soon. Those things, we’ve waited 12 months or more sometimes for those. We had one that was in an apartment, a fire case that we handled in an apartment and it was a little easier because it was contained to a room, wasn’t spread out through the whole apartment, the client could still lock the front door to the apartment. We locked it, we put everybody on notice and we’re able to go there with folks from the other side too.

Tim Cronin:

So this one’s convenient like that because it’s on our client’s property. They built their parents’ house on the same property. But yeah, you got to preserve everything, get notice out to everyone and you need to get a cause and origin expert out there with everybody else having someone out there to photograph and document everything immediately.

John Simon:

So let me ask you this, easier said than done. I said that you need to contact all potential parties. How do you do that if you haven’t done any discovery? Yeah,

Tim Cronin:

Yeah, it’s kind of tough. That’s part of talking to the whole family. Hopefully you can try to find out if they know first of all who the service was. Usually it would be a hospice service that would’ve delivered and rented the bed to them. And they are an in-state defendant and definitely a defendant for providing a defective product and failing to warn if you ultimately get the manufacturer in, you can try to get in touch with them. If you provide notice to them, they should then know who the manufacturer of the bed is. If your other family members don’t already know, sometimes you might end up with a defendant that you didn’t know to give notice to in the beginning. Well,

John Simon:

Based on what the client information the client gave you, they’re looking at the hospital bed, right? There may be some other appliance or other product in the house that ends up being the culprit, something in the kitchen microwave. It could be the wiring of the house itself, something in the electrical box. You got to do what you can, but you can’t notify 85 different people. But you got to go with where your initial evidence is taking you

Tim Cronin:

And then keep the scene as preserved as you

John Simon:

Can even after

Tim Cronin:

The first

John Simon:

Inspection and even the investigation of the scene needs to be well documented. You need to get somebody good. You don’t get a second chance to do this. A thousand pictures. Yeah.

Erich Vieth:

How hands on are you? Do you visit the scene or do you stay away and make

Tim Cronin:

Sure? I’ll usually go with the cause and origin expert, but I’m not walking through the stuff. I’m just kind of there to observe, ask questions and watch.

John Simon:

Same here. I’ll first, I want to take a first look obviously to see, to walk through the scene with our expert and get their general initial reaction. They might come in and say, look, I can tell you it’s very unlikely that it’s this bed. I think it’s something room not even in the room, right? It didn’t start in the room. And if you get a good expert, they can tell by the fire patterns at least what general area, what room the fire started in. I

Tim Cronin:

Think, yeah, usually can a good one, almost always can. And yeah, they may point you to, I think it was in this room and here from this debris that I’m seeing here, here’s what I think it is. It’s a poorly made electrical outlet or something else. And then maybe we need to stop right now. Maybe we need to notify other people and come back out here. So at the same time as that, I think you need to sign up the whole family. You need to get all of those siblings signed up who have a claim.

John Simon:

You want to get everybody on board. The last thing you want is eight different attorneys with different approaches. It’s cool if they’re represented by somebody else. You at least want to coordinate on behalf of the plaintiffs and work together so that you’re not, everybody’s getting in each other’s way.

Erich Vieth:

How difficult is that when there’s that many people and some of them have interests that might, well obviously there’s a OME game at the end of the,

John Simon:

That’s a whole nother podcast episode. We’ve had that happen. It depends on

Tim Cronin:

The closeness of the

John Simon:

Family. Happens a lot. The idea is we don’t decide who gets what at this stage of the litigation in Missouri, if it’s a wrongful death case and there are eight different people in the receiving class or the surviving class, our job is to get a single amount as a seller,

Tim Cronin:

The biggest pot of money for all of ’em. We can.

John Simon:

And then it isn’t until after all of our work is done that the second stage, if the parties aren’t able to agree, then there’s a hearing and they can get separate representation and the judge will decide how it’s apportioned. And that’s how I lay it out in the beginning. Usually does

Tim Cronin:

It almost every time I’ve had success in situations like this where I’ve had a case with where something similar to this happened and there was a very close family with a bunch of siblings and they all signed up and I had another one with a family that kind of was not very close and there was some half siblings and they didn’t get along and most of them signed up, one or two went with a different lawyer who did no work. The whole case, that’s fine, as long as they weren’t messing it up. And I was able to make clear like, look, how will you guys want to fight about if there’s money, you split it up later, that’s a later problem right now let’s just try to win and get the biggest

John Simon:

Pile we can. And the thing you need to remember also is that if there is this conflict from the beginning where whoever the recovery say the siblings are in disagreement, they don’t talk to each other, they can’t stand each other, that’s going to be a big problem for you in just damages generally. Even if they don’t explicitly start saying negative or bad things, the jury can get a feel for that. You get it. You can see a family. And if it’s a very close knit united family, I think your path forward is a lot easier than if everybody, the jury and defense attorneys too, they’ll pick up on it. They’ll pick up on it.

Tim Cronin:

How much did Susie come over to see the parents

John Simon:

Who helped more? They’re going to

Tim Cronin:

Ask those questions.

John Simon:

That’s all right.

Tim Cronin:

That’s their job.

John Simon:

That’s part of, but I think once you get the initial stuff going and it will be ongoing. I’ve never had one of these where everybody goes to the scene one time and then we’re done. You’re going to have pressure from say the insurance company, pressure from the city with a zoning or ordinance or whatever that homeowner’s insurance need to be notified, but everybody wants to clean it up. There are all kinds of entities that want it cleaned up and get it done. And you want to make sure that everything is not just looked at but preserved. And the big problem with that is, as you know with cases, they take twists and turns and all of a sudden six months later when you’re in the middle of depositions or 12 months later and something comes up that you didn’t anticipate, you can’t go back. The house typically isn’t going to be there 12 months from then. So you really need to have somebody that’s going to look at everything. They got to take their time.

Tim Cronin:

It’s an all day or

John Simon:

Multiple day, multiple days, multiple days.

Tim Cronin:

You are photographing everything in every room, every wall, every part of the floor outlets, every outlet, outlet because like you said, you may have to adjust and you may figure out this isn’t where the fire started. It started over here. And we think it’s from this. So when the scene is cleaned up, they often, they sift through stuff and they put it in storage bins. You need to make sure they are clearly marked what room it came from and in what portion of the room so that you can always go back. And what happens later is then everybody sifts through all that stuff. Once you’ve narrowed it down so you know what it is you’re looking at, there’s going to be later rounds of

John Simon:

Inspections. And the other thing to be aware of too, depending on where the fire happens and who’s investigating it from the fire department, I’ve had plenty of cases where our expert is not in exactly in line with what the state investigator or the city investigator did. And I think the reason that happens is they don’t spend six months looking at it. They don’t spend $200,000 investigating it and analyzing things. They come in, do their investigation and move on to the next one.

Tim Cronin:

It’s also real easy if you hear smoking to say, smoking probably contributed and there’s oxygen in the house.

John Simon:

So you got to be careful with that.

Erich Vieth:

Is the evidence primarily photographic or are there other tests that experts do? In the

John Simon:

Beginning, I think photographic or for instance, if you think it’s a bed fire, they’re components of the bed, the electrical components, that should give you evidence of some arcing or some markings that will show you that’s where the fire started.

Tim Cronin:

So later you take that stuff to a lab, Eric, and then they will do super high tech imaging of it. And it may be destructive, which is by that time hopefully you have everybody who needs to be involved. And yet you figure out if there’s arc mapping on a power cord and the pattern of it and where the cord S severed that helps you take the fire back even further to, it happened in the control box or it happened at this point in the cord or it didn’t happen in the bed. So yeah, there’s later really high resonance imaging that you get done or destructive stuff you get done. It helps you narrow it down and

John Simon:

Put together a protocol. What will happen is it’ll get sent to all the different parties, all the different experts, and everybody will agree on a protocol, go step-by-step, what’s going to be done first, what’s going to be done second, what lab it’s going to be sent to who everybody gets the results. It is a really expensive endeavor, but as I said, there’s no going back. Once the scene is cleared and gone, all you’re left with is the photographic documentation or evidence that you’ve created.

Erich Vieth:

What’s your gut feeling about the cost?

John Simon:

I think if it goes all the way up, you’re looking at 500 grand, 3, 4, 5, $600,000 like that

Tim Cronin:

At the same time that’s happening. What are you doing at your office if you have a suspicion of what the product is?

John Simon:

Okay, while this is going on and you don’t need to wait, you go online and find anything and everything you can about whatever product you think is the culpa. Okay? If you think it’s an electrical hospital bed, and guess what? If it is truly a design defect or even a manufacturing defect, this is probably not the only time it has happened. Find other lawsuits. Find other lawsuits, look at the discovery from those suits, find out what experts they use, get those experts files and you can really

Tim Cronin:

Make a foyer request to the CPSC because they certainly probably have complaints and you want to find out about ’em. Maybe you might end up going deposing interviewing other people where it happened. But you want to get their files if they did any investigation.

John Simon:

And the other thing, I mean this happened with us, Tim, where you and I have worked on fire cases before and those other attorneys reached out to us because it was the same company and same product. And we were able to say, Hey, here’s everything we have and here’s where you need to be looking. Here’s where we need to be looking and things like that. If it’s a bad product, it’s not, yours probably isn’t the first, especially if it’s a product that’s been out on the market for 10, 15 years and there are 800,000 units out there or a hundred thousand, it’s happened before. This isn’t the first time.

Tim Cronin:

And we also would go find an exemplar. I mean once you’re able to narrow down exactly which model it is, and maybe that doesn’t happen until later, but you want to go buy an exemplar, not just for your own purposes and to bring to trial, you’re going to need an electrical engineer and a very good one. And electrical engineers, good ones testifying ones are expensive, but it’s worth it and you need an exemplar for them to be doing testing on examining. So you need to do that at the same time.

John Simon:

And the operator’s manual is fantastic. The owner’s manual that has tons of information and nowadays it’s all online. So you can just download that and start getting a look at whatever information the defendant has about the product. Any warnings look at warnings too, because if it’s happened before, they usually have some type of warning in the paperwork.

Tim Cronin:

Yeah. Okay. So let’s say you’re causing an origin expert and everybody has gone to the scene and there may be later inspections, but they’ve gone to the scene, they’ve told you I can comfortably testify based on here’s my analysis that I can trace the fire to the foot of the bed where the electrical components would be, and you found other complaints about fires involving this bed. All the clients are on board, you’re ready to file.

John Simon:

So the next question is where do you file it?

Tim Cronin:

So I always prefer to be in state court for obvious reasons. Most states have very specific venue laws. You’re probably filing in state court in the county where it happened. If you have an in-state defendant and if you have a hospice service provider that provided the bed, you do. So I would file it against that provider, that company, the hospice service, and then the manufacturer. Now you may end up needing to add other defendants later in discovery. You got to dig into are there any component manufacturers for any of these parts? And if you find out, for example, a different company made the actual control box or the power cord, and that’s the problem you have, you may end up needing to add them in later, so you better figure that out quick. You don’t want to get halfway down the road and have a trial setting and then you add a defendant and then they say, well, we need to go back and do an inspection and all this stuff.

John Simon:

Here’s something else that this has happened to us before where if it’s a house or an apartment, you’re going to have an insurance company involved. And they have an interest also in looking at what the cause of it was because if it was caused by another company or an electric hospital bed, they get their money back after they pay for the damages and they will always have somebody out there looking at it because there’s, there’s always an insurance claim. So they will have a fire origin expert already on board. Now they’re not going to do anywhere near the extensive analysis that needs to be done. If you’re going to file a personal injury lawsuit, they’re going to write our coattails, but they’re going to want, they’re going to help us. They’re going to help us all. That’s my point is they’re really your partner at that point and they’re going to cooperate and you can coordinate things.

And the reality is let’s say the house is worth two or $300,000 and it’s totaled. I mean, insurance company’s not going to spend $200,000 figuring out what caused the fire. It just doesn’t make any sense for them. And they tend to be very cooperative and will coordinate with you and share whatever information they have in their initial investigation. So that’s something you need to, don’t want to be at odd and you’re not at odds with them. I mean both of you’re searching for what actually caused the fire. And so that’s a good initial resource to sit down and actually even before, let’s say you have a case and you’re not really sure if you want to go and hire an expert right out of the bat. Right off the bat, you might want to talk to the insurance company and see if they’ve had somebody go out and do an initial look at the fire scene and schedule a time to meet with that investigator from the insurance company just as a start to see what they see so far. And that might be a good first step before you get somebody hire somebody on your own. Tim, have you ever hired the expert who was working for the insurance company? And if you have or haven’t, what are your thoughts on that?

Tim Cronin:

I’ve hired, but not with the mind that they would probably ultimately be my only expert, but I’ve hired ’em so that first of all, they might help me to understand some things and clue me into the direction I need to be going, but I don’t think I’ve ever ended up using that expert as my primary expert that I’m relying upon. There’s a risk with that, right? Because if that person ends up testifying, you’ve basically endorsed them. But I’ve done it before. I usually don’t. How about you?

John Simon:

Yeah, I can’t remember when I have, I’ve gotten information from them and coordinated with them. I don’t recall a case where I actually hired them right off early in early stages and ended up endorsing them.

Tim Cronin:

Well, I think I’ve hired him as a consultant. I don’t think I’ve ended up formally endorsing them as an expert. I’d like to testify later.

Erich Vieth:

Are these cases ever simple where you quickly see the part that caused the problem and there’s one defendant or maybe two, or is it always like five or 10?

John Simon:

I’ll give you an example of my former partner, and this was years ago, probably 30 something years ago. He had a case involving an electrical blanket that he thought caused the fire and somebody who was using it was burned to death in this fire and everything on the blanket itself, the cord was melted. The on-off switch on the electric blanket didn’t even look like it looked like a clump of melted plastic. And he was pretty far into the case and it was the other side that did this, not him. I guess he didn’t have a good expert, but they were able to pry open the melted plastic covering on the on-off switch and they did it when both parties were there and it was off.

Tim Cronin:

Well, that’s a problem.

John Simon:

So that was like you said, is it ever simple? Well, that’s simple. And so something else caused the fire.

Tim Cronin:

I mean it may be simple in that everybody ultimately agrees what the remove origin is and you can narrow it down to only a few potential causes and you may only have one or two defendants in it, but it’s never simple because they’re always going to try to point to as many other possibilities as it is

John Simon:

A damaged cord. How it was set up, it was misused.

Tim Cronin:

You can’t prove exactly, even if the bed started fire, exactly what was wrong with the design because it’s all melted and destroyed and there’s nothing wrong with it.

John Simon:

That’s a big defense in these cases because there’s lack of evidence. Correct. Evidence is always burned up

Tim Cronin:

By the very nature of the

John Simon:

Case. And you’re right, Tim, you and I have handled a case similar to this where our expert right off the bat went in and said, look, I know I can tell you generally where, and it was at the foot of a bed and then what happens is what’s at the foot of the bed? It’s the electrical components, the control box. And that gave us a pretty high level of confidence that as far as what started the fire, it had to be something in the electrical component of the

Tim Cronin:

Bed. And then you get your electrical engineer involved and they look at the exemplar and other complaints and they look at arcing and they really try, they dig into the exemplar control box and they try to figure out here, look, here’s what I see is wrong with the design. If they do, where if a fire started here, it is more likely than not because of this, it’s constantly kept energized and the electrical components are too close to the combustible components. It may be that simple. If it’s constantly kept energized and the padding from the bed is abutted against a hot control box, you don’t really need to know exactly what in the control box the electrical things that are constantly energized or hot. You need to

John Simon:

Separate it from things that can catch on fire.

Tim Cronin:

Correct. Do they have bad flammable plastic on the control box? It may be that simple. I think when you first plead, you want to plead as broadly and with as many general theories as you can and then get specific later because the broadness of your complaint dictates the broadness of the discovery you can do. So I would look at all those kinds of things like I would plead generally it is defective because it can start fires.

John Simon:

You mentioned this earlier about holding off, adding additional defendants and I want to revisit that.

Tim Cronin:

Yeah.

John Simon:

Is the problem I see with that is you might be 12 months, 18 months down the road,

Tim Cronin:

You want to do it early.

John Simon:

Yeah, but you don’t want to if you add them too late where you’ve done a lot of discovery and depositions, you got to do ’em all over time. I agree. I mean I tend to lean more toward, if you’ve got some basis to think that they’re at fault, put ’em in early. I mean, what do you think?

Tim Cronin:

I agree, and I guess, and I may have not made clear, if you are pretty sure it is this product and you know the service that provided it, then you can figure out the manufacturer and that service. There’s your two defendants. What is often the case we know is that a manufacturer may have a different company that manufactures a component. So I would immediately, and no extensions insist on discovery being answered about any component manufacturers for your electrical stuff and get ’em in right away as quick as you can.

John Simon:

And that’s information you’re only going to get from the manufacturer, the main

Tim Cronin:

Manufacturer.

John Simon:

Right.

Tim Cronin:

Unless you find it in other lawsuits or complaints, in which case I agree, Adam, right away.

John Simon:

Yeah, I think anybody that you can add you want to add in the beginning as you go through the case, I mean it doesn’t help you working up a case with a larger number of defendants. I mean, everything’s more difficult scheduling a greater chance of more good defense lawyers. So really it’s not to your advantage to have 10 defendants in a case versus two, but you got to balance that with the fact that you don’t want to work on it for a year and a half and then you just got to start all over because you’re adding somebody late in the game.

Erich Vieth:

That’s the end of part one of client intake. Hope you enjoyed that. This has been an episode of The Jury Is Out. I’m ErichThief. I’m Tim Cronin. I’m John Simon. We’ll see you

John Simon:

Next time.

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