PITTSBURGH – A Pittsburgh-area woman has filed suit against a prominent protective paint and coating manufacturer, charging one of its paint-stripping products for being responsible for the death of her son.
Lauren Atkins of South Connellsville filed suit in the Allegheny County Court of Common Pleas on Sept. 17 versus Rust-Oleum Corporation, of Vernon Hills, Ill.
“On Feb. 12, 2018, Joshua Paul Atkins wanted to strip the paint from the front fork of his bicycle. To complete this task, he had recently purchased a one-quart container of Rust-Oleum Aircraft Remover," the suit says.
"Rust-Oleum did not warn that there was any risk of any significant health effect unless there was ‘repeated and prolonged exposure’ or ‘intentional misuse by deliberately concentrating and inhaling the contents,'” according to the lawsuit.
“Mr. Atkins decided to do this small painting project in the bathtub so he could be safely away from the family dog. He placed the bicycle fork in a small metal pan, so paint stripper would not get onto the bathtub, and then poured some of the Rust-Oleum Aircraft Remover into a small metal cup.”
The plaintiff came home and found her son slumped over in the bathtub.
The suit says responding EMS personnel found Joshua sitting in the bathtub fully clothed, with bicycle parts and a form of paint stripper beside the tub and his head between his legs. Joshua also showed blood coming from his mouth and nose, and showed signs of death with lividity and rigor mortis, the suit says.
“Toxicological testing revealed dichloromethane (methylene chloride) in the cardiac blood at 190 mcg/ml, which is twice the level necessary to cause death. The autopsy and the death certificate identified the cause of death as: 'Toxic Inhalation of Paint Thinner Fumes/Vapors (Dichloromethane),'” the complaint reads.
“Mr. Atkins was killed by inhaling methylene chloride vapors released by the use of defendant Rust-Oleum’s Aircraft Remover. If defendant Rust-Oleum had adequately warned Mr. Atkins of the dangers of inhaling methylene chloride, then he would not have died. If defendant Rust-Oleum had formulated its paint stripper without methylene chloride, then Mr. Atkins would not have died.”
According to the plaintiff, the Consumer Product Safety Commission’s Federal Hazardous Substances Act governed the sale and use of the defendant’s paint stripper, but Rust-Oleum allegedly did not comply with its label standards.
The suit says that for a number of years, the label read: “DANGER! POISON! VAPOR HARMFUL. CAUSES EYE BURNS. SKIN IRRITANT. MAY BE HARMFUL, FATAL OR CAUSE BLINDNESS IF SWALLOWED.”
“In 2015, defendant Rust-Oleum was advised that this language violated the CPSC guidelines, including because it did not state that inhaling the methylene chloride vapors could be fatal; Rust-Oleum never corrected the warnings in its principal display panel for Aircraft Remover," the suit says.
"By stating only that the product could prove fatal if swallowed and not stating that the product could be fatal if inhaled, defendant Rust-Oleum chose to hide from its customers the potentially deadly hazard presented by the inhalation of vapors.”
The plaintiff states the CPSC has directed that the warning label on all containers of methylene chloride paint strippers intended for household or consumer use – which would include Rust-Oleum’s Aircraft Remover – include the following statement in a prominent location:
“WARNING: Contains Methylene Chloride. INHALATION OF VAPOR CAN KILL YOU. DO NOT USE IN ENCLOSED AREAS, such as bathrooms, basements, or closets. SYMPTOMS MAY NOT BE NOTICEABLE.”
The plaintiff claims the “content, writing, format, length and organization used by defendant Rust-Oleum for its Aircraft Remover product labeling does not adequately or effectively warn the user as to the potential hazards of the product and the means to protect oneself, and it violated governmental and industry guidelines, including CPSC labeling guidelines.”
For counts of negligence, negligence per se, strict liability, breach of express and implied warranties and wrongful death, the plaintiff is seeking compensatory and punitive damages in excess of $50,000, plus delay damages, interest, costs of suit and such other relief that the Court deems just.
The plaintiff is represented by Martin K. Brigham, Charles H. Hehmeyer, Daniel Bencivenga and Noah J. Goodman of Raynes Lawn Hehmeyer, all in Philadelphia.
The defendant is represented by Matthew M. Hoffman of Tucker Arensberg, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-18-012042
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com