ALLENTOWN – Sherwin-Williams has won summary judgment against an Easton couple’s litigation, which alleged the product they used to stain their deck self-heated and caused a fire on their property.
Scott Mains and Andrea Mains of Easton first filed a complaint on Jan. 7, 2020 in the U.S. District Court for the Eastern District of Pennsylvania versus The Sherwin-Williams Co., of Cleveland, Ohio.
The Mains claimed they purchased Sherwin-Williams’ Thompson’s WaterSeal Penetrating Timber Oil for their deck and placed application materials with the product left on it on the lawn next to the deck.
They alleged that on Aug. 26, 2018, the application materials left on the lawn spontaneously caught on fire, causing extensive damage to the property. The Mains added the stain was defective and unreasonably dangerous, and that the product lacked adequate warnings and instructions.
On Feb. 27, 2020, Sherwin-Williams filed an answer to the Mains’ complaint, denying each of their claims in their entirety and countering with 42 affirmative defenses.
Among the 40-plus defenses were:
• The Mains’ lawsuit failing to state a claim against Sherwin-Williams upon which relief may be granted;
• If contributing negligence by the plaintiffs were discovered, then any recovery is barred pursuant to the Pennsylvania Comparative Negligence Act;
• Because of plaintiffs’ own contributory negligence, comparative negligence, assumption of the risk and/or because plaintiffs disregarded certain open and obvious risks; and
• Because their damages were proximately caused by an unforeseeable misuse, application, alteration, modification, and/or abuse of the Thompson’s WaterSeal Penetrating Timber Oil identified in the complaint.
Sherwin-Williams filed a motion on Dec. 23, 2020, seeking a protective order and confidentiality in the instant action. By virtue of the order, the motion asked to limit disclosure of protected information to the plaintiffs, testifying witnesses, and to any retained experts consistent with prevailing law.
U.S. District Court for the Eastern District of Pennsylvania Judge John M. Gallagher ruled to partially grant the protective order, in a memorandum opinion issued on April 7, 2021.
Following the issuance of the protective order in April 2021, Sherwin-Williams filed a motion for sanctions on Feb. 23, connected to what it argued were disclosures of the formula used to create its paints, in filings made by the plaintiffs in both November 2021 and January 2022.
“Plaintiffs and their counsel failed miserably to meet [an expectation of confidentiality] here. Sherwin-Williams’s greatest fear in disclosing its confidential product formulas became a reality when plaintiffs, the insurance company for which they are acting as a front, and their counsel published Sherwin-Williams’ ‘secret sauce’ for the world – including all of Sherwin-Williams’ competitors – to see, putting Sherwin-Williams’ business in jeopardy. The gravity of plaintiffs and their attorneys’ infraction cannot be overstated,” the motion stated, in part.
“The confidential, proprietary, trade secret product formula plaintiffs chose to publish for the world to see happens to be the formula for a ‘bread and butter’ brand and product line that dominates in its particular market segment, and generates substantial annual revenue. And to make matters worse, plaintiffs and their attorneys were repeat offenders, having engaged in a similar violation (albeit limited to a couple of ingredients) less than two months earlier. Sherwin-Williams brought that first violation [in November 2021] to opposing counsel’s attention, and allowed them to correct the situation without further consequence, expecting plaintiffs and their lawyers had learned their lesson. They did not. Instead, they doubled down and put the entire formula online.”
Plaintiff counsel filed a motion opposing the imposition of sanctions on March 10, albeit with an apology to the Court and explaining that the confidential information was mistakenly included in the filing by a paralegal.
Gallagher issued a memorandum opinion on May 6 which partially granted the defense’s motion for sanctions on plaintiff counsel, in response to the disclosures described above. One such provision was finding plaintiff counsel in civil contempt.
In a June 28 memorandum opinion to follow up, Gallagher further ruled that counsel for Sherwin-Williams would receive more than $21,000 in legal fees.
Sherwin-Williams filed to obtain summary judgment from the Court on July 25.
“Summary judgment is warranted, indeed compelled in this case, because plaintiffs cannot sustain their threshold burden of proof as to any of their material claims or causes of action. It is undisputed that the Thompson’s label contains the words ‘DANGER!’ and ‘COMBUSTIBLE!’, and that it further informs users that ‘rags, steel wool, other waste soaked with this product...may catch fire if improperly discarded. Immediately place rags, steel wood, other waste soaked with this product...in a sealed, water filled, metal container,” the motion for summary judgment stated.
“And it is equally undisputed that plaintiffs never followed or even bothered to read or heed this label content. This is a fatal deficiency in plaintiffs’ warning claim, because regardless of the adequacy of the label, it is beyond dispute that had plaintiffs read and heeded the label content, no fire would have occurred as alleged by plaintiffs, since rags with stain on them will not spontaneously combust if placed in a sealed, water-filled metal container.”
Additionally, Sherwin-Williams’ counsel argued that the plaintiffs cannot prove that the mechanism of fire was “spontaneous combustion” without a qualified expert to opine as to the origin and cause of the fire – and yet in this matter, the plaintiffs “did not produce or disclose any such expert or expert report substantiating their core claim that the fire occurred when waste-soaked rags self-heated and caught fire.”
“This is a black-and-white, predicate causation issue – without an expert to establish how the fire originated, plaintiffs cannot prove that the fire would not have occurred but for the supposed defect that allegedly renders the product and its label content defective,” the motion stated.
The company went to on to say that the plaintiff’s warning defect issue was pre-empted by the Federal Hazardous Substances Act.
UPDATE
In a Nov. 10 memorandum opinion, Gallagher ruled to grant the defense’s motion for summary judgment and found in their favor – adding that the plaintiffs did not put forth sufficient evidence to show that the deck-staining product in question started the fire.
“Because the plaintiffs’ implied warranty theories require proof of a defective product, the question becomes whether plaintiffs have made a showing sufficient to establish the wood stain product was defective. Plaintiffs allege the design and manufacture of the wood stain is defective because the product caused a fire upon disposal of wood-stain-soaked rags in metal painting cans,” Gallagher said.
“Defendant contends product defectiveness and merchantability are distinct concepts and thus, Mr. Mains’ successful staining of the deck – prior to the fire – show the product was properly sound for its designed purpose. Defendant also concedes the product is combustible; the wood stain’s label warns of spontaneous combustion unless the product is properly discarded. But plaintiff does not put forward expert evidence to show the product caused the resulting fire.”
Gallagher explained that the plaintiffs alleged the wood stain product was defective because it spontaneously combusted upon its disposal, meaning that their argument centered on the “defect at issue [having] occurred upon disposal of the wood stain product – not during its usage.”
“Plaintiffs have not put forward sufficient expert or circumstantial evidence to prove the product at issue caused the fire, let alone that a defect of the product at issue caused the fire. Plaintiffs’ minimal evidence concerning defect and causation is fatal where the alleged defect relies on the product lighting on fire. Because Plaintiffs have not put forward sufficient evidence of a defect, summary judgment is therefore appropriate on Plaintiffs’ breach of warranty claim,” Gallagher concluded.
The plaintiffs were represented by Kenneth T. Levine and Matthew M. Connolly of de Luca Levine, in East Norriton.
The defendant was represented by C. Tyler Havey, Ann T. Field, Ilan Rosenberg and Eric C. Rosenberg of Gordon & Rees, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-00112
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com