PITTSBURGH - Rust-Oleum Corp., the creator of the product a man was using to remove paint in a bathtub when he died, is arguing that the deceased knew of the product's dangers when he used it.
Meanwhile, a public interest group is citing the death in a lawsuit in Vermont against the Environmental Protection Agency that warns of exposure to methylene chloride.
“The decedent, Joshua Paul Atkins, appreciated and understood risks associated with the use, if any, of the Aircraft Remover product,” Rust-Oleum wrote in an answer to the lawsuit brought by the man's mother, Lauren Atkins in the Court of Common Pleas in Allegheny County.
“With such knowledge, Joshua Paul Atkins continued to use the product in such a manner as to continue to expose himself to any alleged risks. As a result of Joshua Paul Atkins’ own assumption of risk, plaintiff’s recovery, if any, should be limited or barred.”
On Feb. 12, 2018, Atkins wanted to strip the paint from the front fork of his bicycle and was using a one-quart container of Rust-Oleum Aircraft Remover, the lawsuit says.
Lauren Atkins says Rust-Oleum did not warn that there was a risk of a significant health effect unless there was prolonged exposure or "intentional misuse by deliberately concentrating and inhaling the contents."
Joshua Atkins was performing the task in a bathtub so he could avoid exposing the family dog to the product. He poured the aircraft remover in a small metal cup.
Lauren Atkins came home to find her son slumped over in the bathtub, the lawsuit says. There was blood coming from his mouth and nose.
Rust-Oleum Corp. claimed the deceased didn’t use the product properly, which the defendant says served as a contribution to, or even a reason for his death, along with his alleged negligence.
“The decedent failed to take reasonable, adequate and available precautions to protect himself while using the Aircraft Remover product,” the document stated.
In a related development, Lauren Atkins has teamed with the Vermont Public Interest Research Group, Safer Chemicals Healthy Families and Wendy Hartley, who lost her son after he was exposed to methylene chloride, to sue Andrew Wheeler, acting administrator of the EPA, and the EPA itself in the U.S. District Court for the District of Vermont. The action was filed on Jan. 11.
The plaintiffs hope to get the court to compel Wheeler and the EPA “to perform their mandatory duty under the federal Toxic Substances Control Act to address the serious and imminent threat to human health presented by Methylene Chloride,” the lawsuit stated.
“They invoke section 20(a)(2) of TSCA, which provides the United States District Courts with jurisdiction to direct EPA to take actions under the law that are non-discretionary, but which EPA has failed to carry out.”
The Pennsylvania Record previously reported on this story after Lauren Atkins first filed her lawsuit shortly after her son’s passing. She and the other plaintiffs have asked the court for relief such as issuing a rule that bans manufacturers and distributors from selling products that contain methylene chloride. They also asked for reasonable fees and costs such as attorneys’ fees.