No. 09-56331 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANDREW W. SHALABY, SONIA DUNN-RUIZ, Plaintiffs - Appellants, v. NEWELL RUBBERMAID, INC.; THE HOME DEPOT, INC.; IRWIN INDUSTRIAL TOOL COMPANY, INC.; BERNZOMATIC, Defendants-cross-claimants - Appellees, and WESTERN INDUSTRIES, INC.; WORTHINGTON INDUSTRIES, Cross-defendants - Appellees. D.C. No. 3:07-cv-2107-MMA- BLM Southern District of California, San Diego Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding EXCERPTS OF RECORD VOLUME IV Alan J. Gould SBN 68446 Law Office of Gould and Hahn 5801 Christie Ave, suite 385 Emeryville, CA 94608 Tel. 510-428-2229, fax 510-428-2232 [email protected]Andrew W. Shalaby sbn 206841 7525 Leviston Ave El Cerrito, CA 94530 Tel. 510-528-8500 email: [email protected]Attorneys for Appellants.
Transcript
No. 09-56331
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
ANDREW W. SHALABY, SONIADUNN-RUIZ, Plaintiffs - Appellants,v.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ANDREW SHALABY and SONIA DUNN-RUIZ, ) ) Plaintiffs, ) ) vs. ) No. C06-07026CW ) NEWELL RUBBERMAID, INC., RUBBERMAID,) INCORPORATED, and THE HOME DEPOT, ) INC., ) ) Defendants. ) ____________________________________) DEPOSITION OF RANDY T. STEPHENS Taken at San Diego, California April 17, 2007 Reported by Catherine Gautereaux, CSR Certificate No. 3122 � 1 Appearances:
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2 For Plaintiffs: 3 Alborg, Veiluva & Epstein LLP 4 By: Mark D. Epstein 200 Pringle Avenue, Suite 410 5 Walnut Creek, California 94596-7380 (925) 939-9880 fax (925) 939-9915 6 [email protected] 7 For Defendants: 8 Keller, Price & Moorhead 9 By: J. Phillip Moorhead 229 Avenue, Second Floor 10 Redondo Beach, California 90277 (310) 540-1332 fax (310) 540-8480 11 [email protected] 12 For Warren Ratliff: 13 14 Grimm Vranjes McCormick & Graham LLP By: Gregory D. Stephan 15 550 West C Street, Suite 1100 San Diego, California 92101 16 (619) 231-8802 fax (619) 233-6039 17 18 19 DEPOSITION OF RANDY T. STEPHENS, 20 taken by the Defendants at 1515 Hotel Circle South, 21 San Diego, California, commencing on Tuesday, April 17, 22 2007, at 12:50 p.m., before Catherine A-M Gautereaux, 23 Certified Shorthand Reporter in and for the State of 24 California. 25 2 � 1 I N D E X 2 3 EXAMINATION BY PAGE
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4 Mr. Moorhead 4, 60, 78 5 Mr. Epstein 59, 67, 81 6 7 8 9 E X H I B I T S 10 NUMBER DESCRIPTION PAGE 11 4 - Site map for Campland on the Bay 22 12 5 - Reservation sheet for Andrew Shalaby, 23 showing a move from D32 to D19 13 6 - Black-and-white photograph of a 51 14 woman and a little girl 15 7 - Black-and-white photograph of a 51 woman, a little girl, and a boy 16 8 - Subpoena for the appearance of 64 17 "Randy Stevens" 18 19 20 21 22 23 24 25 3 � 1 SAN DIEGO, CALIFORNIA; TUESDAY, APRIL 17, 2007 2 12:50 P.M. 3 RANDY T. STEPHENS, 4 having been first duly sworn,
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5 testified as follows: 6 7 EXAMINATION 8 BY MR. MOORHEAD: 9 Q Now that we are on the record, why don't we 10 have you give us your full name for the record. 11 A Randy Thomas Stephens. Do you want me to 12 spell it? 13 Q Sure. 14 A It's S-t-e-p-h-e-n-s. 15 Q Is it okay if I call you "Randy"? 16 A Yes, it is. 17 Q Okay. Randy, we met yesterday -- 18 A Yes, sir. 19 Q -- when I came out to take a look at Campland. 20 I'll introduce myself again. My name is John Moorhead. 21 I represent a company called Burnzomatic and some other 22 related entities in a lawsuit that's been filed by a 23 fellow by the name of Shalaby, and we're here today to 24 take your deposition. Have you ever had your deposition 25 taken before? 4 � 1 A I have done live testimony in other court 2 cases, but not an actual, just deposition like this, no. 3 Q So you've been called to testify at a trial or 4 two? 5 A Yes, in the past. 6 Q This is somewhat similar to that. At the risk
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7 of telling you things that you might already know or 8 things that your company's attorney might have said to 9 you about the process, let me kind of describe what 10 we're going to be doing here today so that we're on the 11 same page when we get to the substantive questions. 12 The court reporter, seated to your right, is 13 trying to take down everything that we say. We're going 14 to make her job a lot easier if we don't speak at the 15 same time. So try to wait until my question has been 16 completed before you give me an answer so that she takes 17 down only one person speaking at a time. And I'll try 18 to make sure that your answer is done before I ask the 19 next question. 20 It's harder to do than it sounds because in a 21 normal conversation we can speak and hear at the same 22 time and communicate just fine, but since she is trying 23 to take things down in a chronological order, if we 24 overlap, the record gets pretty hard to follow. So try 25 to wait until the question is done before you answer. 5 � 1 I'll try to wait until the answer is done before I ask 2 the next question. 3 At a later point in time, the transcript of 4 today's proceedings will be typed up and made available 5 to you. You can read it over. If corrections are 6 necessary in order to make your testimony accurate, you 7 can make changes. And then you'll be asked to sign it
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8 under the penalty of perjury. 9 You are not a party to this case. Campland is 10 not a party to this case. But, obviously, if you can 11 avoid making changes in the transcript, it will 12 eliminate the risk that someone might view that 13 unfavorably with respect to your credibility because of 14 one thing you said today and you changed at a later 15 time. So we're going to try to get your very best 16 testimony today. 17 I'm going to ask you to follow a few ground 18 rules for me in answering the questions, which will 19 minimize the changes that need to be made later. The 20 first of those is, please answer all of the questions 21 audibly. It's okay for you to shake your head or make 22 gestures, or whatever -- we are not trying to preclude 23 that -- but you'll have to do more than that, because 24 that won't come out on the record. 25 So if the answer to a question is yes, you can 6 � 1 either just say yes or you can say yes and go up and 2 down all you want, but at least put the "Yes" in there. 3 I'd also ask that you make all your responses 4 words as opposed to sounds. I made reference in 5 Warren's deposition to the fact that I have a bad habit 6 of using uh-huh and un-unh. While we are sitting here, 7 you can tell which was which, but when you are trying to 8 read that in the transcript, it's pretty hard to tell 9 which one was the negative and the positive. So try to
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10 avoid using those types of sounds. 11 I may ask you questions that call for 12 estimates of such things as distance or time. I realize 13 that you didn't have a tape measure or a stopwatch, and 14 I don't expect that type of a precision, but I am 15 entitled to your best estimates of such things. 16 However, I don't want you to guess. That doesn't do 17 anybody any good. 18 If you don't know how far or how long these 19 things are that I'm asking you about, just tell us that. 20 We may ask the question slightly differently in an 21 effort to make it easier for you, but if all we're doing 22 is asking you questions about things that you don't know 23 or you don't remember, let us know and we'll move on to 24 something else. 25 If you don't understand any of my questions, 7 � 1 Randy, let me know. I'll try to rephrase them so that 2 you do understand. Sometimes, my questions don't come 3 out as clear as I'd like them to. 4 If you don't hear any of my questions, let me 5 know. That way, we can be sure that the answer that you 6 are giving is corresponding to the question that I'm 7 asking. Fair enough? 8 A Fair enough. 9 Q Okay. And if you need to take a break at any 10 time, that's okay. We're trying to make this as
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11 comfortable for you as possible, recognizing the fact 12 that you'd probably rather be someplace else. But 13 that's not supposed to be an ordeal, so -- 14 Do you have any questions about what's going 15 to happen before we get started? 16 A No. I would like to tell you that I have had 17 a little bit of a sore throat and I'm still -- if I have 18 to clear my throat once in a while -- 19 Q That's fine. 20 MR. EPSTEIN: We'll forgive you. 21 THE WITNESS: It's a slight cold. 22 BY MR. MOORHEAD: 23 Q You are not under the influence of any 24 medication that might impair your ability to give good 25 testimony today? 8 � 1 A No. 2 Q What's your business address? 3 A 2211 Pacific Beach Drive. 4 Q That's in San Diego? 5 A San Diego, California, yes, sir. 6 Q And the ZIP code? 7 A 92109. 8 Q And the business phone? 9 A That would be Area Code (858) 581-4219. 10 Q And your home address? 11 A Let's see. I just moved. I can give you 12 where I live.
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13 Q Well, I'm only asking so if we need to get 14 ahold of you if you were to decide Campland is not 15 paying you enough and you were to move away. 16 A I live in an RV park. So my mailing address 17 is 42566 Escolacata -- this is a mouthful -- 18 E-s-c-o-l-a-c-a-t-a, Drive, okay. And that's in 19 Temecula. That's my permanent address. 20 Q What's the ZIP code up there in Temecula? 21 A It is 92592. 22 Q All right. And your date of birth? 23 A 10/3/69. 24 Q By whom are you currently employed? 25 A Terra Vista Management; Campland on the Bay. 9 � 1 Q So the company you work for is Terra Vista 2 Management? 3 A Yes, sir. 4 Q And the place you work at is Campland -- 5 A Yes, sir. 6 Q -- on the Bay? You're jumping in on me a 7 little bit. 8 A Oh. Sorry. 9 Q She is going to scream at me pretty soon if we 10 don't stop. How long have you worked at Campland on the 11 Bay, roughly? 12 A Roughly, coming on three years. 13 Q And your current position there?
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14 A I am a ranger. 15 Q How long have you held that position? 16 A The three years I've been there. 17 Q Okay. Who is your immediate supervisor at the 18 present time? 19 A Darrin Sessler. D-a-r-r-i-n, S-e-s-s-l-e-r. 20 Q How long has Darrin been your immediate 21 supervisor, roughly? 22 A Roughly, I want to say a year, a year and a 23 half. They changed over supervisors. 24 Q Was Therese Kiel a supervisor of yours at one 25 time? 10 � 1 A Yes, sir. 2 Q Is that immediately prior to Darrin? 3 A Yes. She is Darrin's predecessor. 4 Q Okay. Do you know which of them was your 5 supervisor in April of 2006? 6 A That would have been Therese Kiel. 7 Q All right. Were you on duty at Campland on 8 the Bay on the evening of April 21, 2006, when a camper 9 named Andrew Shalaby suffered burns at his campsite? 10 A Yes, sir, I was. 11 Q Do you recall that event, at least somewhat? 12 A Yes, I do. Yeah, to a decent degree of -- 13 Q Okay. How did you personally become aware of 14 Mr. Shalaby's incident? 15 A A woman came up to the ranger gate. This is
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16 what I was told. I was radioed to go to, I believe it 17 was, site D19, regarding a personal injury of a man 18 severely burned at the site, at which time I -- we asked 19 that 911 be called from our gate. 20 Q Let me stop you there. 21 A Yeah. 22 Q You didn't -- you weren't contacted by the 23 person who came to the gate; you were radioed in? 24 A I was radioed by Warren. 25 Q Mr. Ratliff? 11 � 1 A I believe Mr. Ratliff was at the gate, to the 2 best of my knowledge. 3 Q Do you remember where you worked? 4 A On the cart, somewhere on the property, is all 5 I can say. Patrolling. 6 Q So essentially, if I'm understanding you, 7 Warren radioed you while you were on the cart and told 8 you what had happened and told you where it happened and 9 told you to go there, essentially? 10 A Yes. Yes. 11 Q Do you recall whether, at the time you 12 received the radio call from Warren, you were alone or 13 with other Campland employees? 14 A To my recollection, I was alone. I can't for 15 sure say that, because we do ride with partners 16 sometimes.
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17 Q What was Warren's position with Campland at 18 that time? 19 A He was also a ranger. He is like -- he is -- 20 technically, he is our supervisor. 21 Q Okay. 22 A Darrin is our direct boss. 23 Q So he was senior to you in the chain of 24 command, but Darrin was the one that they called a 25 supervisor? 12 � 1 A Well, actually, it could have been Therese at 2 the time. Excuse me. 3 Q Anyway, besides you and Warren, were there any 4 other rangers on duty at the time this happened? 5 A You know what? I can't say for sure, because 6 this is so -- it was both the same time as this time 7 last year, approximately. 8 Q Right. 9 A I can't remember if we had two or three people 10 on duty. I just don't know. 11 Q Okay. If there were two, it would have been 12 you and Warren? 13 A Yes, which -- which I tend to think. But I'm 14 not going to say for sure, because Warren did have 15 somebody from the office relieve him at the gate to 16 assist me at the scene. 17 Q Okay. 18 A So I -- I would assume or state that I think
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19 it was two. 20 Q So your best recollection is that when the 21 radio call came to you, you were probably alone? 22 A I was -- I was -- I believe I was alone and I 23 was one of the first responders at the scene. 24 Q Okay. And you learned from Warren or from 25 some other source that when Warren radioed you and told 13 � 1 you to go there, that he was having somebody come and 2 relieve him at the gate, right? 3 A Not immediately. Immediately, it was -- it 4 was -- I was called to the scene, which is standard for 5 any kind of accident or whatever. We have one person go 6 kind of assess to see if it's -- if it's an emergency or 7 it's life-threatening or extreme body injury or if it's 8 just, you know, somebody stubbed their toe or somebody 9 twisted their ankle. 10 Q But somehow you found out that he was going to 11 have someone relieve him? 12 A I got there. I called Warren to tell him we 13 definitely needed 911 called immediately. Now, we found 14 out, obviously, through the -- how things happened, that 15 obviously somebody had called them, too, because their 16 response time was probably three to five minutes from 17 what I got there, which is an extremely fast time. 18 Q So it is your understanding that even before 19 you told Warren to call 911, that somebody had already
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20 called? 21 A I assume another camper did. Once again, I 22 don't know as far as that goes. 23 Q The contact that you first received from 24 Warren, was that by two-way radio, a cell phone, 25 face-to-face? How was that? 14 � 1 A It would be a two-way radio. 2 Q At that time, back in April of 2006, Randy, 3 did Campland have any type of procedure for logging in 4 that type of communication between you and Warren? 5 A Just standard how I do it. Normally, we have 6 a notepad that's like a little notebook. I flip it over 7 and I always write down times. Because I was in the 8 military, I tend to always log things in a 24-hour 9 period. 10 Q So whether or not you remember doing it in 11 this instance, your normal habit would have been to take 12 that notepad and write down, "Got a call from Warren at 13 1530 hours," or whatever? 14 A Yes, sir. I would write -- you know, on this 15 pad I'd write "1500," then -- I'd just write that time. 16 Then, normally, if EMS or 911 is called, I'll write the 17 time, look at my watch, and see what time I had 911 18 called, what time they arrive, what time they depart. 19 Q Do you have a recollection as you sit here 20 today, four years later, whether you did that in this 21 particular instance?
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22 A From my report, I can tell that I must have, 23 because -- or I must have had some type of 24 documentation, because I did document the times and the 25 arrivals of EMS. I'm pretty sure I did. 15 � 1 Q Any reason to believe that you would still 2 have the notepad with the information that you first 3 wrote down? 4 A No, I'm sure I don't. That is why I made out 5 this form. 6 Q All right. Is there a procedure -- or let me 7 ask it differently: In April of 2006, when this 8 happened, was there a procedure whereby anybody else, 9 other than you and Warren, within the Campland family of 10 employees, would have normally been notified that this 11 happened; Mr. Campland, who runs the place, or whatever? 12 Was there anybody else in the chain of command that 13 would have been notified? 14 A Normally -- and I don't know, because I was 15 radioing to Warren in the beginning -- normally, our 16 direct supervisor would have been contacted, her being 17 Therese Kiel at the time. As far as I know, that's what 18 happened. 19 Q Okay. And since you didn't mention that 20 somebody was on duty at the time, Warren would have had 21 to call her on the phone, right? 22 A She would have subsequently been called on the
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23 phone. Now, how she was contacted, I don't know 24 immediately, but I do know that she was there before the 25 paramedics departed. 16 � 1 Q Okay. 2 A She was on scene, because her apartment is 3 directly overlooking the sites where it happened. 4 Q Does she live on -- 5 A She lived on the property where Darrin 6 currently resides. 7 Q So sometime before the emergency personnel 8 departed, Therese Kiel came to the incident scene? 9 A She was at the scene. She was talking to the 10 firefighters. She was not a direct responder or a, you 11 know -- 12 Q Right. And you're not sure how she became 13 aware, but it could have been the sirens and the lights 14 flashing and things like that? 15 A It very well could have been. 16 Q Did you have any conversations with her at the 17 incident site? 18 A I do not recall that. 19 Q Okay. Do you know, from what you observed, 20 whether she had conversations with any of the fire 21 department personnel at the scene? 22 A I know she had contact with the fire 23 personnel, the engineer, and some of the EMS. I'm not 24 sure who and to what capacity.
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25 Q Do you know, from your observations, whether 17 � 1 she had any conversations with the victim of the fire? 2 A That, I don't believe she did. I do not know, 3 you know, for sure. She was out of uniform because she 4 was off -- off duty at the time. We happened to catch 5 her, you know, at her residence -- or they caught her at 6 her residence. 7 Q Same type of question: Do you know whether 8 she had any conversations with any of the other campers 9 or people in the general vicinity of where this 10 happened? 11 A That, I am not aware of, either. 12 Q Did you have access to some kind of a vehicle 13 at the time? 14 A Yes. I was -- you know, I don't remember 15 exactly, due to the length of time, but I would have 16 either been in -- I believe I was on a golf cart and -- 17 because I believe Warren used the truck to respond and 18 guide an EMS. 19 Q Besides Warren and yourself and whoever it was 20 in the main building that relieved him at the gate, any 21 other Campland employees that you remember being on duty 22 at the time this happened? 23 A No. Not sure. 24 Q Any janitorial staff? 25 A I don't -- I don't really remember that. It
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18 � 1 was quite a while ago. 2 Q Okay. Anybody else besides Warren, you, and 3 Therese Kiel that worked for Campland that you are aware 4 of that came to the incident site? 5 A That -- that's all that I am aware of. 6 Q Okay. So after getting the radio call from 7 Warren, you went to -- I think you said it was D19? 8 A Let me check in my report, but I believe 9 that's where we were yesterday. Yes, D19. 10 Q And that's mentioned someplace in your report. 11 That's how I know. 12 A Yes. It's on the site -- the site number and 13 corresponding on the top. 14 Q Do you have any documentation that would show 15 when those campers had arrived at Campland? 16 A I believe the -- it is in our computer system. 17 I have the -- I believe, the -- Campland -- right here. 18 This is their check-in active history. I believe you 19 guys have it. And it's also labeled on the top, which I 20 looked up from the computer on the incident report. 21 It's got the date in, date out, okay. It's right on the 22 top of the incident report. 23 Now, I do believe they did -- I don't know if 24 it matters or not -- but I believe you talked to Darrin 25 about that, that they did change sites, I guess, because 19
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� 1 one is only for one overnight period. 2 Q Okay. We're going to get to your handwritten 3 incident report in a little while, but that's what I 4 think you've been referring to as far as date in and 5 date out. And you are talking about the 4/21/06 date 6 and 4/22/06 for out? 7 A Yes, sir. 8 Q And that's the date in and out of campsite 9 D19? 10 A D19, yes. 11 Q But that they might have been at a different 12 campsite in the days preceding that? 13 A Right. And we just found that out yesterday, 14 to my knowledge. That's why it's listed on here as the 15 21st and the 22nd. 16 Q Okay. And whatever you have in front of you, 17 does that tell what day they actually arrived? This is 18 what you show me? 19 A No. This paper would show when they actually 20 arrived, right. No, this is only from that site. I 21 don't have the information. My employer has it. 22 Q Okay. 23 A Because if you remember, yesterday, we did 24 find out that they transferred sites. See, when I look 25 it up on the computer, I see -- all it shows is the 20 �
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1 return reservation. So when they transferred sites, 2 that's all I have on this page. So, unfortunately, I 3 thought you did get that from Darrin yesterday, but I 4 don't have it with me. 5 Q He might have given it to me. If he did, I 6 don't see it now. But that's not a problem. 7 A Okay. 8 Q Do you know, as you sit here today, what other 9 campsites they had been at? 10 A Yesterday it was stated -- it was stated to me 11 it was D32, is my recollection. 12 Q If you know, where is that, in comparison with 13 D19? 14 A That would be -- I wish I would have brought 15 my map. Do you guys have a map of the property? I can 16 show you. It would be -- would be on the -- they are on 17 the outer circle, on D19. It would be on the inner 18 circle portion, on the other side. If we can find a 19 map, I can show you, yes, sir. 20 MR. EPSTEIN: Should we mark this as an 21 exhibit? 22 MR. MOORHEAD: Might as well. 23 BY MR. MOORHEAD: 24 Q You can go ahead and look at it, first. Then, 25 we'll mark it. See if it helps you find what you're 21 � 1 looking for.
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2 A D19 is represented with an "X" here, okay. 3 D32 would be -- and D33 are right here, on the other 4 side. So D19 is where we responded to the incident 5 right here, okay. D32 -- I accidentally did mess up 6 here. D32 is right here. So in between here, there is 7 a small break fence, and which is -- 8 MR. STEPHAN: Maybe we can put an "A" by D32 9 and -- 10 THE WITNESS: I can change it if you'd like. 11 MR. EPSTEIN: I'm sorry to chime in. 12 Can you tell from that which is which, or is 13 it clear? Can you tell me where the front gate is? 14 THE WITNESS: Sure. It's right here, where it 15 says "Check in." Right here would be the front gate, 16 okay. So it's -- if you're entering the park, it would 17 be to the far right-hand corner. 18 MR. EPSTEIN: Let's mark this as an exhibit. 19 (Exhibit 4 marked.) 20 BY MR. MOORHEAD: 21 Q And then let me show you the only thing that I 22 could find, that might be what you were talking about. 23 Is this what you're talking about, that shows when they 24 came in? 25 A Yes, sir. The top reservation would be Andrew 22 � 1 Shalaby, reservation 544238, and that would be for his 2 site at D32, okay. That was the 16th through the 21st. 3 And then, on the 21st of '06, he moved to site D19,
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4 which is the second reservation listed on the form. 5 (Exhibit 5 marked.) 6 BY MR. MOORHEAD: 7 Q So it shows that they first arrived on 8 April the 16th, did you say? 9 A Yes, sir. That's what it shows from that 10 reservation. 11 Q Do you remember, Randy, about what time of day 12 it was -- and you can look at your report if that helps 13 you -- about what time of day it was that you learned 14 about the incident? 15 A I can tell you I know it was after dark. It 16 was -- from my statement here, it says that I responded 17 at -- at 2215. So it would be 10:15. 18 Q P.m.? 19 A P.m. 20 Q The "2215" is military time, right? 21 A Yes. That's how I tend to label all my stuff. 22 Oh, one thing I didn't notice -- sorry -- but there were 23 three of us on duty, because in my report I always write 24 down who I contacted. I contacted 56 -- a male 25 contacted 56, excuse me, which is Donna Tank, okay. And 23 � 1 so that answers our question earlier. 2 Q It would have answered a few of them. She was 3 not with you if you had to contact her, right? She was 4 someplace on the property but not with you physically?
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5 A It must be, because, like I say, it was a year 6 ago. A lot of things happened between here and there. 7 Q And her assigned number is 56, you say? 8 A Her number is 56. 9 Q And her name is Donna What? 10 A Tank, T-a-n-k. 11 Q And she is also a park ranger? 12 A She is also a park ranger, yes, sir. 13 Q Do you have any recollection, now that you've 14 seen that, as to whether Donna ever came to the incident 15 site that evening? 16 A I don't recall. 17 Q Okay. 18 A I'm glad that it was listed in my paperwork. 19 I didn't even notice that before. 20 Q Do you have an estimate of how long it took 21 you to get from where you received the radio call from 22 Warren to D19, approximately? 23 A Okay. That, I don't know. I have listed the 24 time when we were told, which is 2215. So more than 25 likely -- I remember that I was there and I was not 24 � 1 there more than a couple of minutes and I've got the 2 medic unit arrived -- I've got the medic unit arriving 3 at 2220. So this all happened within a five-minute 4 period. 5 Q Okay. Do you recall -- you've given us a 6 little bit of information, but do you recall what it was
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7 Warren told you when he radioed you? He said something 8 about a personal injury being involved? 9 A To respond to D19 due to a severe burn. 10 Q So he told you it was a burn incident? 11 A Right. And our normal protocol is to go to 12 the scene, assess the situation, because each person's, 13 you know, idea of an emergency can be different. 14 Q Did Warren tell you anything else in that 15 radio call about what had happened as opposed to what he 16 wanted you to do? 17 A Negative. Normally, at the time the person at 18 the scene -- so once Warren had sent me to the scene, I 19 basically take charge of -- 'cause he can't assess, 20 because he is not there. 21 Q Right. 22 A So I would have been telling him there is 23 various things. Usually, the age -- because he -- when 24 I tell him to radio 911, the first thing we do is take 25 basics: The person's age, gender, description of what 25 � 1 happened, you know, the injury; and, you know, a level 2 of consciousness. Typical. 3 Q So the typical MO for you would have been, 4 upon receiving the call to go to the incident scene, to 5 assess it and then contact him and let him know whether 6 it was truly an emergency or, I think you used "stubbed 7 their toe"?
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8 A Well, yeah. I mean, to each person, a level 9 of -- 10 Q Seriousness? 11 A -- seriousness or emergency. You know, to 12 them, it's always an emergency, but whether it's going 13 to be technically a 911 call or not, I have to kind of 14 assess that. 15 Q Do you recall what you relayed back to Warren 16 once you got there and made your assessment? 17 A Yes. 18 Q What did you tell him? 19 A Well, exact wording, I can't tell you, but I 20 do recall that I said, "We have a serious burn here, a 21 third-degree burns to both legs." I then took -- I 22 didn't get a lot of time because, like I said, EMS did 23 arrive when I was just -- we were still on the 911 call 24 to them when we heard the sirens that they were 25 arriving. 26 � 1 So I know I stated that we had a man in his 2 forties. I hadn't gotten his name yet because we were 3 trying to keep him calm, because he was shaking 4 severely. I do recall that we put jackets and blankets 5 that were provided -- I know he had my jacket, and 6 blankets that were provided by whoever was around -- I 7 can't even remember -- to keep him from going into 8 shock, and that I had given him -- I was giving him the 9 basics when the eMS arrived. I didn't even know
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10 Mr. Shalaby's name at the time. 11 Q Did you recommend to Warren that he should 12 come to the site? 13 A No. That's a standard: When we have a 911, 14 either police or medical emergency, if -- if we are -- 15 our staff to where we can't meet all of our rangers in 16 that area, whether to stop, get the other campers back 17 or to assist in on actual assistance with EMS or 18 whatever, standard protocol: We have somebody from the 19 front desk, the registration office, if it's opened, 20 watch it. 21 Otherwise, we actually leave the one arm up to 22 get into the park for campers to get in, and we actually 23 lock the front gate and just respond to the emergency. 24 Q Okay. You've indicated that when you arrived 25 at the scene you observed the victim had burns to both 27 � 1 begs? 2 A Yes. 3 Q What else can you remember seeing, either 4 about him or the campsite or conditions, upon your 5 arrival? 6 A The male was seated probably about three to 7 four feet away from the actual fire ring, with his back 8 to the fire ring. So if I was sitting how he was 9 seated, the fire ring would have been approximately at 10 the wall.
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11 There was another chair in front of him. 12 There wasn't anybody seated there. There were various 13 people that were maybe from his family or whatever, 14 trying to keep him calm when I arrived. 15 Q Did he have his feet up on that chair? 16 A No. He was sitting, rather -- kind of rocking 17 like this, and very shaking, because he did have 18 extensive injuries. And his legs were -- I remember he 19 was barefooted and his legs were charred and actually 20 popped open, similar to a -- like a hot dog if you put 21 it on a fire. It sounds graphic, but that's how it 22 looked. It actually looked like it burst open. 23 Q You mentioned charring to his legs. Any other 24 parts of his body? 25 A He also had a, I remember, pinkness. The 28 � 1 charring was on his shins. He had pinkness to -- almost 2 like a severe, severe, sunburn up in -- on the tops of 3 his thighs, on his chest region; actually, on his -- I 4 believe, on his neck region and even to his face 5 where -- I don't know if it was a flash burn or type 6 thing, but it was like an extreme pinkness. 7 Q Okay. 8 A Okay. 9 Q How about his upper extremities, arms? 10 A His arms, I didn't notice, because Mr. Shalaby 11 was -- he was shaking. He was probably on the verge of 12 going into shock.
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13 Q Okay. And -- 14 A And he was -- he was mumbling to himself and 15 shaking, basically. 16 Q Were there other people at the campsite, 17 besides Mr. Shalaby, when you arrived? 18 A Yes, sir. There was a female and at least one 19 juvenile child under the age of, probably, 12, I think. 20 Q Okay. 21 A And also -- sorry. 22 Q No. Go ahead. 23 A Also, there were people from the associating 24 campsites around there when I got there. And I kind of 25 dispersed them. And they helped me put the blankets and 29 � 1 the jackets on Mr. Shalaby's upper extremity to try to 2 keep him warm. 3 Q Was there a fire burning in the fire ring? 4 A Whether it was burning or -- I know there was 5 at least red ambers, because we did see that. And there 6 was like -- light smoke coming around. 7 Q Okay. 8 A As far as whether there was actual flame or 9 whether it was just the cherry coals, I can't tell you. 10 I just remember it was pitch-black and there was, like, 11 I believe, a propane -- or it might have been electric, 12 but it was a lantern illuminating where I could see 13 Mr. Shalaby.
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14 Q Okay. How about: There is some indication 15 that this might have involved some kind of a compressed 16 gas cylinder and torch. Did you see anything like that 17 in the area? 18 A Yes, I did. 19 Q Was that object that you saw on fire? 20 A No. 21 Q Where was it in relation to the fire ring when 22 you saw it? 23 A It was -- I want to say it was approximately a 24 foot to two and a half feet to -- a foot to two feet in 25 back of the fire ring. So it would have been 30 � 1 approximately four feet to the rear of Mr. Shalaby. 2 Q So the sequence would have been Mr. Shalaby, 3 the fire ring, and then this apparatus? 4 A Yes, sir. Yes, sir. It was about 5 approximately a foot to two feet beyond the fire ring, 6 in the dirt. 7 Q But it was not engulfed in flame when you saw 8 it? 9 A No, sir. 10 Q Was it both a compressed gas cylinder and a 11 torch, or was it two separate pieces, or was there one 12 of those two objects nearby, or what? 13 A Okay. It is a standard two-piece unit. It's 14 a compressed gas cylinder and then a screw-on torch tip. 15 Standard.
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16 Q When you saw it for the first time, though, 17 were those two connected to each other? 18 A Yes, sir, they were. 19 Q He was charred and rocking, maybe about to go 20 into shock, but when you first saw Mr. Shalaby, he was 21 still conscious? 22 A He was conscious all the way through, as far 23 as I know. 24 Q Was he conversing with anyone when you 25 arrived? 31 � 1 A Yes. When -- when I first arrived, we were 2 telling him to relax; you know, we had EMS on the way. 3 He had stated that he was cold, I think, and we saw him 4 shaking. So immediately, from my past knowledge -- 5 because I was an EMT years ago -- I knew that he was 6 possibly going into shock. 7 At that time I asked him if he knew where he 8 was, who he was, things like that. And I proceeded to 9 put coverings on him to keep him warmer. 10 Q Did he seem to know who and where he was? 11 A Yes. Yes. 12 Q Okay. 13 A I didn't know his full name. He did say his 14 name was Andrew or Andy. I can't remember what it was. 15 I believe it was Andrew. 16 Q Neither any part of him nor his clothing was
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17 still on fire at the point you arrived, was it? 18 A No. You could tell that the wounds to his 19 legs were very fresh and they were still oozing. They 20 were actually charred. It was quite graphic. I mean, 21 you could literally, just looking at him, whether he was 22 still -- like I say, he was shaking. It was so recent, 23 and the wounds were so fresh, that it's nothing like 24 I've ever seen before. 25 Q Okay. Warren gave you some indication he was 32 � 1 going to call 911, and you got some indication that 2 someone had already done that? 3 A Actually -- to my recollection, we were 4 actually on the -- I was relaying, while Warren was on 5 the phone, with the 911 operator. And somebody else 6 must have called, and we've deducted this from the 7 timing that the EMS arrived. It was very, very fast. 8 Q Okay. Do you remember whether the juvenile 9 that you saw at the campsite was male or female? 10 A I want to say male. I'm pretty sure it was 11 a -- it was a -- maybe adolescent boy, I believe. 12 Q All right. So shortly after your arrival at 13 the scene, fire department personnel came? 14 A Yes. There was -- I believe it was Engine 21. 15 I'm pretty sure. That's the normal responding engine 16 for Pacific Beach area. 17 Q And what apparatus did they bring? 18 A They brought -- they brought the standard.
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19 They brought -- I believe it was the ladder truck and 20 EMS ambulance. 21 Q So there would have been a fire truck 22 involved. There would have been a paramedic truck. And 23 then did they also have an ambulance come separate from 24 that? 25 A No. I meant the paramedic unit. I'm sorry. 33 � 1 Q About how long after your arrival did they 2 actually show up there at D19? 3 A It would have been within five minutes. I 4 would approximate five -- three to five minutes. They 5 were very, very fast. And they transported him almost 6 immediately. 7 Q Randy, give me your best estimation of how 8 long you were at campsite D19 that evening, total. 9 A I would say approximately 10 to 12, 15 10 minutes, something like that; 10 to 15 minutes -- 11 Q Okay. 12 A -- total. 13 Q And was there a reason that you departed after 14 that period of time? In other words, were you 15 reassigned to something else? Was everything done, or 16 what? 17 A I departed the scene, in fact -- well, I know 18 I departed at the time that the -- there was an EMS 19 unit, and the fire truck left, because normally, as the
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20 case scenario goes, we have to guide them out because it 21 is quite tricky to get around in there. So I guarantee 22 you that I led them out. 23 Q So you would have probably driven away from 24 the scene when the fire department personnel were ready 25 to go? 34 � 1 A Right. In fact, I remember them actually 2 packaging -- well, Mr. Shalaby, pretty much, to my 3 knowledge, actually stepped and sat onto the gurney 4 because of his injuries. And they were -- they had him 5 in a -- in a semi-prone thing and they were loading him 6 in and, I believe, probably doing the standard -- I 7 remember them giving him oxygen. And I'm not sure if 8 they started an IV line or stuff like that. And then 9 once they had him packaged and they were ready to go, I 10 guided them out with lights and sirens. 11 Q Now, you made reference to trying to comfort 12 Mr. Shalaby, putting a coat and blankets on him, telling 13 him that 911 had been called, et cetera. Did you have 14 any conversations directly with him about what had 15 happened? 16 A Varying -- it wasn't so much a conversation as 17 to when he was rocking back and forth, he just kept 18 saying, "I'm an idiot. I can't believe I'm so stupid," 19 something regarding this. 20 And we were telling him, "Just calm down." 21 You know, "We got help on the way." And, you know, it
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22 was coherently, but yet he was -- you could tell -- you 23 know, he was rocking back and forth, "This is all my 24 fault." You know, "I'm so stupid." 25 He felt bad, basically, I think, for -- 35 � 1 because his family vacation had come to an early halt 2 for something that he had caused. 3 Q Did he ever tell you what it was that he 4 thought he had done wrong that gave rise to him saying 5 it was all his fault? 6 A That, I don't know. I know that there was a 7 couple of different -- during that time when I was there 8 with EMS and they were mainly concentrating on 9 Mr. Shalaby, trying to get him comfortable and getting 10 him into the unit, we got varying -- between me and 11 Warren, we got varying stories. 12 Q Those were from other people, though, right? 13 A Those were from third-party people. 14 Q But I want to focus right now on: Did 15 Mr. Ratliff -- not Mr. Ratliff -- did Mr. Shalaby 16 himself ever say anything in your presence, whether he 17 was talking directly to you, Randy, or talking to 18 someone else, that you could hear, did he ever give any 19 explanation as to why he was taking the blame for it? 20 A I didn't understand your question, sorry, 21 somewhat. 22 Q Okay.
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23 A I heard -- he said, "I was trying to light --" 24 and then I couldn't understand, because the EMS was in 25 there and everything else, and I had kind of stepped 36 � 1 back. And then I got very much varying stories from 2 other people. So he was -- he said he was trying to 3 light something. 4 Now, at first, I thought he said "campfire." 5 I can't be positive. 6 Q But that's all you got from him directly? 7 A Right, mainly. Once EMS got there, I was kind 8 of -- well, and should have been -- kind of pushed to 9 the back, and I had to get the information I could. 10 Q So as part of the job you did there at the 11 scene, you spoke with campers from adjacent campsites? 12 A Actually, once he was gone, it wasn't that I 13 spoke to other people, because we asked the fire 14 department -- because they were pretty much interviewing 15 everybody. 16 It was what I heard in the background, you 17 know, different people saying that he was lighting -- 18 you know, doing different things. So I can't -- it's a 19 third-person account of what I got beyond that. 20 Q I'm just trying to untangle this so I follow. 21 You didn't necessarily have interviews with adjacent 22 campsite campers, but while you were there on scene, you 23 heard their conversations with investigating fire 24 personnel?
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25 A Right. And amongst each other. Right, 37 � 1 exactly. 2 Q All right. Besides assessing the situation, 3 calming Mr. Shalaby, and crowd control, I guess I'll 4 call it, while the fire department was there, and then 5 leading them out, did you have any other 6 responsibilities at the scene as far as you understood 7 it? 8 A No, because we -- we had asked the fire -- the 9 engineer and the other rescue personnel if they actually 10 needed the torch and the body -- the torch body and the 11 tip. And they said that -- that the patient had already 12 told them pretty much what happened and that they didn't 13 need it for further investigation. 14 Q Now, before we move away from the campsite, 15 before you left, I guess what you're telling us -- or I 16 gather that you're telling us that you overheard 17 conversations between campers, whether they were talking 18 to themselves, to each other, or talking to fire 19 department personnel about what had happened? 20 A Yes, sir. 21 Q Do you remember what any of those stories 22 were? 23 A There were -- like I said, there were a 24 couple. And who to believe, we don't know. 25 Q I'm not asking you to assess their
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38 � 1 credibility. 2 A Right. Right. We had heard that he was 3 lighting a water heater on the pilot light. We had also 4 heard -- these were -- I think there was three different 5 ones that I heard: That he was lighting a campfire and 6 that he was kicking around the cylinder, like, in the 7 coals. There was, like -- he presumed empty. Now, 8 which one, I don't know. 9 Q I don't want you to guess which one was 10 accurate. 11 A I could not guess. 12 Q I just want to make sure I have the full sum 13 and substance of what stories were told to you. So you 14 were told that he might have been trying to light a 15 pilot light on a water heater? 16 A Right. 17 Q He might have been trying to light a campfire? 18 A Right. 19 Q And he might have been kicking a compressed 20 gas cylinder, I guess you're talking about, in or around 21 the campfire ring? 22 A And there was one other one: That he was 23 hitting it on the ring and it burst. 24 Q But you don't have any way, as you sit here 25 today, to identify for us who said which of those 39
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� 1 stories, do you? 2 A No. No. 3 Q Okay. 4 A When -- when I -- 5 MR. STEPHAN: You've answered. 6 THE WITNESS: Okay. 7 BY MR. MOORHEAD: 8 Q Did you, as part of your duties, make a list 9 of any of the people that were offering stories? 10 Whether or not you said, you know, "Witness No. 1 says 11 he was lighting a pilot light; witness No. 2 says he was 12 banging it on the campfire ring," did you at least make 13 a list of the people who gave you stories of what 14 happened? 15 A No, because at that point, once EMS and the 16 fire investigative people had gotten there, it's their 17 scene; it's not mine anymore. I have no authority. 18 They do. 19 Q Did you overhear any of these people who were 20 offering these varied stories -- did you hear any of 21 them make the comment that they had actually witnessed 22 what they were saying, or were they telling the fire 23 department personnel or each other, "I heard that he was 24 doing X, Y or Z"? 25 A That, I don't know. I didn't hear exactly the 40 �
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1 context. 2 Q And even though the only conversation you had 3 directly with Mr. Shalaby about what might have happened 4 was, "I was lighting" -- and he kind of trailed off when 5 the fire department personnel arrived, did you overhear 6 any kind of story he gave about what might have 7 happened, like you had heard from the other campers? 8 A No. 9 Q When you saw the cylinder and the torch beyond 10 the campfire ring from where Mr. Shalaby was sitting, 11 did you take it upon yourself to gather it up, or did 12 you just leave it there? 13 A I looked at it. Warren, I believe, is the one 14 who actually collected it, yeah. And the unit was 15 together. 16 Q I might have asked you this -- and if I did, I 17 apologize -- but was it on fire when you saw it? 18 A No. It was -- it was burst open. 19 Q So it's not in flames when you see it. Did 20 you touch it? 21 A No, I don't believe I did. 22 Q So you wouldn't be able to tell us, as you sit 23 here today, whether it was hot, warm, cold or otherwise? 24 A Well, basically, the answer is no, I would not 25 be able to tell you. 41 � 1 Q Okay. You said it was burst open. I assume
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2 by that you mean the cylinder? 3 A The cylinder itself, right where the -- I 4 don't know if you've ever seen a propane cylinder, but 5 right at the top, where it domes and then creates the 6 threads, it was burst just beyond the threads at the 7 neck. 8 Q Anyway, the cylinder that you're talking about 9 is roughly the shape of like a two-liter bottle, right? 10 A Yeah. Yeah, but slightly slimmer and -- yeah. 11 Q The sides essentially go straight up and then 12 taper like shoulders into a neck that's threaded? 13 A Right. Right. Exactly. 14 Q And the place that you saw -- are we talking 15 about a hole, a crack, or what did you see that had 16 burst? 17 A Well, if I use this right here -- it's 18 glass -- but right at the -- if this is the neck of the 19 bottle right here, it was split approximately two and a 20 half inches long. 21 Q That's the length? 22 A Long. And maybe a quarter-inch wide. 23 Q Okay. So we are talking basically about, 24 like, a slit or a crack as opposed to a round hole? 25 A Yeah. Like a split. It was kind of 42 � 1 elliptical-shaped, I guess. 2 Q Okay. And that was near where the -- or at 3 the point where the shoulders of the cylinder become the
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4 threaded neck? 5 A Right. It was right at the neck. Right at 6 the base of the neck. 7 Q All right. In or below the threads? 8 A Below the threads. 9 Q And basically running in the same direction as 10 the threads, as opposed to perpendicular to them? 11 A Right. Right. 12 Q Did you observe in any way, shape or form, 13 either by manipulating it or looking at it or in any 14 other fashion, whether the torch was all the way onto 15 the cylinder? 16 A That, I don't know. 17 Q Okay. Did you observe any damage to the 18 torch, as opposed to the crack you've talked about in 19 the cylinder? 20 A No, no. It was -- I didn't want to touch it 21 too much because I thought it was still -- I don't know. 22 I didn't notice the crack. I didn't notice if the torch 23 body was still on the torch tip. 24 Q Did you make any observations, however 25 unscientific they may have been, as to whether it 43 � 1 appeared that the torch was properly affixed to the 2 cylinder? 3 A That, I -- I didn't touch it. 4 Q Could you see any of the threads? I mean, I
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5 know you know which direction they would normally run 6 in, but -- 7 A Yeah. But all you could see was the bottom of 8 the threads. There is probably a 1/4 to an 1/8 inch to 9 where the neck meets the shoulders, and you could see 10 the bottom of the -- of a thread. Now, I don't know if 11 they thread completely down or -- 12 Q What color was the threaded area, if you 13 remember? 14 A I don't recall. 15 Q You don't have any recollection of whether 16 what you saw was, for the sake of an example, silver or 17 rusty or yellow or black or anything else? 18 A I don't recall. I honestly don't recall. 19 Q Was there any evidence, in the area where you 20 saw this fracture of the neck of the cylinder, that 21 there were any by-particles of combustion, like soot or 22 anything? 23 A No. In fact, I didn't even see -- I didn't 24 even see like a scorching around where the crack was. I 25 don't know exactly how the explosion worked, but I 44 � 1 didn't see, like, burning to the actual cylinder itself. 2 Not that it wasn't there, but -- 3 Q And as you sit here today, you don't have any 4 way of knowing whether that crack that you saw in the 5 neck of the cylinder was there before Mr. Shalaby 6 attempted to light the torch or was a result of him
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7 lighting the torch, do you? 8 A No, I don't have any way of knowing that. 9 Q But, in any event, you don't recall seeing any 10 damage to the torch apparatus itself? 11 A No, sir. 12 Q With respect to the cylinder, still, did it 13 have any labels on it? 14 A Yes, it did. It said -- I believe it was 15 "Burnzomatic," but it didn't -- like, as far as the 16 actual -- I didn't see the actual, like, embossing or 17 anything. I saw the standard label that was on it. 18 Q That was still intact? 19 A I believe it was mostly intact. Like I said, 20 once again, it was lying in the dirt. Now, I believe 21 that the label might have been a little bit, like, you 22 know, peeled, just from where -- from what I remember, 23 but I remember that the cylinder was yellow. That's -- 24 that's all I can tell you. 25 Q And you do remember seeing at least some of 45 � 1 the label still on it? 2 A Yes. 3 MR. EPSTEIN: Do you mind if we take five 4 minutes? 5 MR. MOORHEAD: No, not at all. 6 (Recess.) 7 MR. MOORHEAD: Let's go back on the record.
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8 BY MR. MOORHEAD: 9 Q Before we get too far away from it, do you 10 remember what color the cylinder was? 11 A Yes. It was yellow. 12 Q Okay. Do you know what type of compressed gas 13 was in it? 14 A Yes, I do. 15 Q What kind? 16 A To prior knowledge, I've used this before. 17 The yellow cylinder is reserved only for MAPP gas. 18 Q Do you know what "MAPP" stands for? 19 A Not offhand. I know what it's used for. 20 Q Good. How about the torch? What color was 21 it? 22 A I believe the body is black. 23 Q And I think you said earlier that with 24 whatever remaining portions of the label you saw on the 25 cylinder, you believe it was -- Burnzomatic was the 46 � 1 label on it? 2 A I'm -- I'm pretty sure. 3 Q Did you see any labeling of any type on the 4 torch? 5 A On the torch body? 6 Q Yes. 7 A No, I didn't. 8 Q Okay. Did it have any label still on it? 9 A The torch itself?
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10 Q The torch itself, yeah. 11 A No, I don't believe it did. 12 Q Okay. And did it have any damage to it, 13 consistent with being banged on a hard surface, like one 14 of the people that you overheard said? Anything you 15 saw, anyway? 16 A Not that I saw. All I saw was the slit. 17 Q But that was on the cylinder, not the torch? 18 A Right. On the torch body itself, I didn't see 19 any damage. 20 Q Okay. Did you ever see it other than lying on 21 the ground? 22 A I saw it in the truck. I never actually 23 touched the torch. 24 Q At all times that you saw the torch itself, 25 was it attached to the cylinder? 47 � 1 A Yes, sir. 2 Q Other than the crack that you saw at the neck 3 of the cylinder, and I think you said something about 4 maybe part of the label had pulled away, do you remember 5 seeing any other damage to the cylinder? 6 A Besides the crack? No, I don't remember. 7 Q Besides the crack and the label issue? 8 A No, sir. 9 Q Okay. Had you ever seen torches and cylinders 10 of this nature before the date of this incident?
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11 A Yes, sir. 12 Q And have you used them before? 13 A Yes, sir. 14 Q Have you ever actually used MAPP? 15 A Yes, sir. 16 Q What other types of compressed gases have you 17 used? 18 A Propane, MAPP gas, larger tanks with 19 oxyacetylene cutting torches, that kind of stuff when I 20 was in the Navy. 21 Q So you've used this type of equipment several 22 times before? 23 A Yes, sir. 24 Q And your conclusion that the cylinder involved 25 in this incident was filled -- or let me -- at least, 48 � 1 that one time, with MAPP gas, was that based solely upon 2 the fact that it was yellow, or did you see some 3 labeling that indicated that it was MAPP? 4 A I think it was solely because I know that that 5 color is reserved for MAPP gas only. Propane cylinders 6 come in a very variance of colors, but MAPP gas has to 7 be in a yellow -- yellow cylinder. 8 Q Based upon your observations, did it appear 9 that the torch that was involved in this incident, the 10 one you saw at that location -- was it, in your opinion, 11 the appropriate torch for that cylinder? 12 A See, that's -- that's where -- to my
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13 recollection -- now, I've seen the pictures, but to my 14 recollection, he -- to my recollection, it was the wrong 15 torch tip on the wrong type of cylinder. That's to my 16 recollection. 17 Q Okay. 18 A Once again, I did see it at a distance. I 19 never actually touched it. 20 Q So you've seen different types of torches used 21 for different types of gases; is that what you're 22 saying? 23 A Yes, sir. 24 Q What's the difference between the torches? 25 What might have been wrong with this one, that caught 49 � 1 your attention? 2 A For some reason, I remember it to be the type 3 that only goes on propane bottles; the difference being 4 in the size, the type of fire being introduced, and the 5 igniting. You know, there is an -- actually, a flame 6 arrester on a MAPP gas cylinder -- or, excuse me -- on a 7 torch body, not cylinder. 8 Q But as you sit here today, you are not a 9 hundred percent sure? 10 A I am not a hundred percent on that. 11 Q Do you know why they use different types of 12 torches for propane versus MAPP? 13 A Why they use different types of torch tips. I
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14 know it has something to do with the flame arrester, 15 because the smaller propane tip withstands so much heat 16 before it burns out and the larger one is -- the larger 17 MAPP gas tip can take a higher heat than a propane tip 18 can. 19 Q Is it your understanding that MAPP burns at a 20 higher temperature than propane? 21 A Extremely higher. 22 Q Okay. What -- if you know, from your 23 experience, what are MAPP gas cylinders used for, 24 normally? 25 A Yes, I do know. They're used for excessive 50 � 1 heating, such as plumbing, brazing. They've been used 2 for blowing glass. Anything where you need an 3 extreme -- an extreme amount of heat. It burns 4 excessively -- I don't know the exact amount, but I 5 know, hundreds and hundreds of degrees higher than 6 propane itself. 7 Q Have you ever seen anybody, before this 8 incident, use a MAPP gas cylinder and torch to light a 9 campfire? 10 A No, sir. That's overkill. 11 MR. MOORHEAD: All right. I'm going to show 12 you the originals of a couple of photographs that 13 Mr. Epstein here has been kind enough to send us. I 14 think I'll just mark as exhibits copies -- 15 black-and-white photocopies of those, because we can
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16 always get the originals. That will be "6" and "7." 17 (Exhibits 6, 7 marked.) 18 BY MR. MOORHEAD: 19 Q The one I've labeled as No. 6 is the one that 20 has the young lady making the thingamajig sign. I'm not 21 sure that's what she's actually doing. 22 A Okay. This is "6." 23 Q Are these the photos that you were talking 24 about a couple of moments ago, where the torch was not 25 what you recall seeing on the date of the incident? 51 � 1 A Yes, sir. 2 Q And how -- how does the torch in photographs, 3 Exhibits 6 and 7, differ visually -- I'm not asking you 4 for product information -- but how does it differ 5 visually from the propane type torch that you described, 6 that you thought you saw on the night of the incident? 7 A Okay. Like I said, once again, it's to my 8 recollection, but -- and due to my limited visibility, 9 obviously, in the nighttime, I don't remember it being 10 that big of a tip, which is -- part of a regular torch 11 tip would probably be approximately the length from the 12 tip to the -- where the coupling meets the black flame 13 arrester on that torch. 14 Q So the propane torches are a lot smaller than 15 the MAPP torches? 16 A Yes. The torch body itself, yes, sir.
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17 Q Okay. 18 A The tip is typically all brass, with a small 19 black plastic knob on the propane cylinder. 20 Q Now, these photographs we have here -- and I 21 don't think anybody in this room is actually positive 22 exactly when they were taken -- but do they appear to 23 you to have been taken at D19? 24 A No, sir. We looked at these, and you visited 25 the property with me. D19 is an edge -- if we look at 52 � 1 the map again, is on the actual outskirts of the 2 property, okay. There is no shrub. There is no marker 3 lamps, as you see in these photos. 4 And the break fence itself is a chain-link 5 wind fence, and that goes from D19 all the way around 6 the border of Campland here. And it's a chain-link 7 fence with the plastic slats put in for privacy. Right 8 in here, as I drew in, right in the center of "D" is 9 actually where this windbreak fence is. 10 MR. EPSTEIN: You're referring to the inner 11 circle there? 12 THE WITNESS: Yes. This picture was actually 13 taken from site D32, which, beyond -- beyond this light 14 back here in the distance, in the dark, would be the 15 other side, over here. So it's taken from this site, 16 facing this direction. 17 MR. EPSTEIN: Sorry to cut in, but -- 18 MR. MOORHEAD: Go ahead.
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19 MR. EPSTEIN: -- if I understand correctly, 20 the photographs that are before you, Exhibits 6 and 7, 21 appear to have been taken from site D32? 22 THE WITNESS: Yes, sir. 23 MR. EPSTEIN: And looking outward past where 24 D19 would be? 25 THE WITNESS: Yes, sir. Looking outward. 53 � 1 Because there is no shrubbery. And if you go to D19, 2 there is no shrubbery or no break fence or no marking 3 lights. 4 BY MR. MOORHEAD: 5 Q You've indicated that these pictures, 6 Exhibits 6 and 7, would be consistent with being taken 7 from D32. Are there bushes and lantern lights around 8 D32? 9 A Yes, sir. I'm sorry. The reason I'm saying 10 it's D32 is because in the reservation sheet it does 11 show they were at D32. There are other areas of the 12 campground. "E" section has them, too, almost 13 identical; a break fence with a bush area. And that, I 14 believe, is it. Yeah, just "D" and "E" sections have 15 those. 16 Q And the camping adventure that the Shalabys 17 were on at the time of this unfortunate incident is not 18 their only visit at Campland? 19 A Oh, no. Mr. Shalaby has been there. I
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20 believe he was there last week. And his reservations 21 show that he's been there in the past. 22 Q So none of us took those photos. We don't 23 know exactly when they were taken, but they don't 24 necessarily had to have been taken on this camping trip? 25 A Exactly. We don't know that. 54 � 1 Q Now, in both of those photos, Exhibits 6 and 2 7, there is a cylinder and a torch. Does the cylinder 3 at least look to be similar or consistent with the one 4 you saw on the date of the incident? 5 A Yes, sir. 6 Q Okay. And because it's yellow, it's your 7 conclusion that it's MAPP gas? 8 A Due to both the color and the shape. A MAPP 9 gas cylinder tends to be long and is cylindrical. I 10 don't know if it's across the board, but I do know that 11 they're always yellow. 12 Q From what you see in front of you, do they 13 indicate on them whether they are MAPP gas or not? 14 A Yes, sir. You can see the "APP" and G-a-s, 15 gas, on the Burnzomatic label. 16 Q That would be on Exhibit 6? 17 A That would be on Exhibit 6, yes, sir. On the 18 other one all I can see is, it's very -- 19 Q Fuzzy? 20 A Yes. 21 Q So, anyway, although the cylinder looks
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22 different -- I mean, excuse me -- although the torch 23 looks different from the one that you remember seeing on 24 the night of the incident, this appears to be the same 25 sort of cylinder that you saw that night? 55 � 1 A Yes, sir. 2 Q Can you tell, by looking at those photos, 3 whether it's the exact same cylinder? Are there any 4 sort of marks or anything -- 5 A No, no. That's a standard cylinder. 6 Q I apologize again if I've already asked you 7 this, because I'm trying to separate what I've asked 8 Warren and what I've asked you. Did you have any 9 conversations with Mr. Shalaby's wife about what 10 happened? 11 A No, I didn't. 12 Q Did you have any conversations with 13 Mr. Shalaby's son, if that's who you saw, about what 14 happened? 15 A Like I said, this is the boy that I remember 16 in my -- in my very bad description, I guess -- 17 adolescent boy. Yes, that is him. 18 Q Did you have any conversations with the boy 19 that's in Exhibit 7 about what had happened? 20 A I know the children were quite -- I remember 21 that the children were by their mother; obviously, I 22 know, notably shaken.
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23 Q That's to be understood. 24 A Exactly. 25 Q All right. I already know the answer to this, 56 � 1 but we'll put it on the record. Did you prepare any 2 type of report in connection with your involvement in 3 this incident? 4 A Just what I have in front of me. The incident 5 report. They are standard. 6 Q All right. And we've already marked a copy of 7 your handwritten statement, together with some other 8 pages, collectively as Exhibit 1. 9 MR. EPSTEIN: Yes. 10 BY MR. MOORHEAD: 11 Q They are out of order in that particular 12 package, but -- all right. Did you create any 13 documents, other than this incident report and the 14 handwritten notes that you had at one time, that you've 15 since disposed of? 16 A No, sir. 17 Q And the page of Exhibit 1 that has your name, 18 under "Report Taken By:," is that all in your 19 handwriting? 20 A Yes, sir, it is. 21 Q And can you tell us -- 22 A Oh, excuse me. Sorry to interrupt. 23 Q Go ahead. 24 A This bottom part right here, "Guest checked
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25 out early. Am unable to contact. TK," that is Therese 57 � 1 Kiel. She amended my report at the end. 2 Q So at the very, very bottom of the page -- 3 A Just at the asterisk. 4 Q -- on Line 15 and beyond that, that's 5 something that Therese Kiel wrote? 6 A Yes, sir. 7 Q Other than that, it's all in your handwriting? 8 A Other than that, that is my report. 9 Q All right. Do you know approximately when it 10 was that you created that document? 11 A It would have been at 2230 p.m., which is 12 exactly when -- that's when I write them. I always look 13 at the clock, and we do them at the gate. 14 Q So you prepared that document, the portion 15 that's in your handwriting, at 10:30 in the evening on 16 the night of the incident? 17 A Yes, sir. 18 Q Have you ever had to redo it for anybody? 19 A No, sir. 20 Q Do you know whether Therese Kiel prepared any 21 type of a report? 22 A That, I do not know, sir. 23 Q Have you ever seen any incident reports 24 prepared specifically by Therese Kiel, other than the 25 asterisk part that's on yours?
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58 � 1 A Oh, yes. I've seen many. 2 Q In connection with this incident, though? 3 A Oh, no, sir. Only for identification 4 purposes. 5 Q And is this something that you just knew you 6 had to prepare, or did someone direct you to prepare it, 7 or what? 8 A Oh, no. It's standard. If we have anything 9 with either police, fire involvement or anything where 10 Campland could be liable, we always need to make a -- an 11 incidence report of how we saw the incident or results. 12 Q If you would, Randy, take a moment to look 13 over the portion that you prepared and tell me if there 14 is anything in there that now, a whole year later, 15 appears to you to be inaccurate in any way. 16 A I believe, no. That's pretty much how I wrote 17 it. 18 MR. EPSTEIN: Do you mind if I chime in? It 19 will save time later. 20 21 EXAMINATION 22 BY MR. EPSTEIN: 23 Q Randy, if you look at Lines 5 and 6, when you 24 say "propane torch," as you sit here today, is it still 25 your recollection that it was a propane torch, or was 59
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� 1 this a report of what you had heard had occurred as 2 opposed to what you had seen? 3 A Well, when you say that, I was standardizing 4 the type of torch, not necessarily the make of the gas, 5 yes. So that could have been worded -- 6 Q So were you using that kind of more in a 7 generic sense? 8 A Right. Yeah. Yeah. It should have been -- 9 right. Exactly. 10 Q Just for my clarification -- 11 A I didn't even notice that at the time. I was 12 just trying to give a generalization of what type of 13 tool was being used when the accident happened. 14 Q The way I might say a butane lighter, even 15 though it was not necessarily -- 16 A Exactly. Like we might say a Bic lighter, 17 even though it wasn't a Bic. 18 19 FURTHER EXAMINATION 20 BY MR. MOORHEAD: 21 Q So as you sit here today, you don't have any 22 reason to believe that you put the word "propane" in 23 order to document the fact that the torch didn't seem to 24 match the cylinder? 25 A I don't know exactly why. You know, this is 60 �
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1 looking back a year later. 2 Q Understood. 3 A I don't know exactly why I worded it that way, 4 but I just know that it is worded that way. 5 Q Was the San Diego Fire Department -- I think 6 you said it was Station 21 that responded? 7 A Yes. Yes, I know it was engine -- they call 8 it Engine Company 21. So it would have been a fire 9 engine, not a -- 10 Q At some point in time that evening, did the 11 fire department take possession of the cylinder and 12 torch? 13 A That, I don't know. I don't believe so, 14 because I myself remember asking the engineer -- and I 15 believe Warren did, too. I can't state for sure -- 16 whether they needed to collect the torch and torch body 17 for evidence. 18 Q Limiting it only to your conversation, so that 19 Warren can speak for himself -- you had a conversation 20 with someone from the fire department -- 21 A Yes. I don't remember exactly who it was. 22 Q You had a conversation with someone at the 23 fire department, asking them if they wanted you to 24 collect and provide them the torch and the cylinder? 25 A Yes. 61 � 1 Q And what was their response?
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2 A No. That the gentleman in question, the 3 patient, as they stated, had already told them, and that 4 it was an accident. 5 Q Okay. Did you have any follow-up 6 conversations with anybody at the fire department, in 7 the days or weeks after this incident, making sure that 8 they didn't change their mind and want the torch or the 9 cylinder? 10 A No, sir. 11 Q Okay. Do you know what became of the torch 12 and the cylinder after that evening? 13 A I, myself, saw it the following day in the -- 14 still in the truck bed. Once again, I didn't touch it, 15 because I didn't exactly know why it was there. And if 16 it's not yours, don't touch it, you know. But after 17 that, I did not see it again. 18 Q Okay. By "truck bed," you're talking about 19 the Toyota? 20 A The Toyota Tacoma ranger truck, yes. 21 Q So you saw it -- did you say it was the 22 following day or the same day? 23 A It would have been the following day, when I 24 came on the shift. 25 Q So the last time you saw the torch or the 62 � 1 cylinder would have been April the 22nd, 2006? 2 A Would have been the -- yes, sir. 3 Q Okay. Do you have any idea what became of it
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4 after that? 5 A To my immediate knowledge, no. 6 Q Okay. You weren't the one -- if this was 7 done, you weren't the one that disposed of it? 8 A No, sir, I was not. 9 Q If it was disposed of, do you know who 10 actually accomplished that? 11 A No. 12 MR. STEPHAN: Calls for speculation. 13 THE WITNESS: No, I do not. 14 BY MR. MOORHEAD: 15 Q So nobody has come to you and said, "I was the 16 guy who pitched it in the Dumpster"? 17 A No, sir. 18 Q Let me finish my question so the record is 19 clear. Did the -- and if I asked you this, again, I 20 apologize. I'm losing track of what I'm asking -- did 21 anybody from the fire department, either that evening, 22 Randy, or at a subsequent point in time, tell you what 23 they determined the cause of this incident to be? 24 A Tell me directly? No, sir. Typically, they 25 don't give us that information. 63 � 1 Q But, in any event, whatever conclusions they 2 reached, though, have they told you that they did not 3 need the torch nor the cylinder? 4 A Yes, sir.
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5 Q Okay. You created a handwritten account of 6 your observations and conclusions that evening, and 7 Warren created one. Have you seen any created by 8 anybody else employed by Campland? 9 A No, sir. 10 MR. MOORHEAD: This is going to have to be a 11 new exhibit, because it's Randy. Let me hand you what 12 we'll mark as Exhibit 8. And this is the subpoena for 13 your deposition. 14 (Exhibit 8 marked.) 15 BY MR. MOORHEAD: 16 Q I don't really need you to look at the front 17 page. It just tells you when and where to come here. I 18 want you to look at the attachment that talks about the 19 things to be produced. 20 And the court reporter was kind enough to 21 point this out to me: My secretary inadvertently put 22 the year 2007 on here, but we were talking about the 23 year 2006, as I'm sure you can gather. 24 A Okay. 25 Q Look at the first category, if you would, and 64 � 1 read into the record what it was that you were to bring. 2 A "All reports and witness statements taken in 3 connection with the incident involving Andrew Shalaby on 4 April 21, 2000- --" well, "-7," but it should be "-6" -- 5 "at Campland." 6 Q And the only things that you are aware of that
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7 Campland has ever had, responsive to that category, 8 would be the handwritten incident report that you 9 prepared and the handwritten incident report that Warren 10 prepared? 11 A Yes, sir, to my knowledge. 12 Q All right. And the second category asked for 13 what? 14 A "All correspondence generated and received in 15 connection with the incident involving Andrew Shalaby on 16 April 21" -- typo, "2007" -- "at Campland." 17 Q Okay. Are you aware of any correspondence, 18 either from Campland to somebody else or to Campland 19 from somebody else, regarding this incident? 20 A I am not aware. 21 Q What's the third category there? 22 A "All photographs taken in connection with the 23 incident involving Andrew Shalaby on April 21, 2007 at 24 Campland." 25 Q You indicated earlier it might have been 65 � 1 standard procedure in the normal course of things to 2 take some photographs. But were any photographs taken 3 in connection with this particular incident? 4 A No, sir. 5 Q What's the fourth category? 6 A Fourth category: "The canister, or canisters, 7 recovered in the incident involving Andrew Shalaby on
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8 April 21, 2007 at Campland." 9 Q Okay. And the canister, as far as you are 10 aware, is no longer available? 11 A Right. Yes, sir. 12 Q And you have no idea where it is? 13 A No, sir, I do not. 14 Q Okay. What's the fifth category? 15 A "The torch recovered from the incident 16 involving Andrew Shalaby on April 21, 2007 at Campland." 17 Q And, like the canister, you have no idea where 18 the torch is located? 19 A Yes, sir. No, sir, I don't. 20 Q That's correct? 21 A That's correct. 22 Q And whether or not you guys took any 23 photographs, you don't know of any photographs taken of 24 the torch or the cylinder either by fire department 25 personnel, the Shalabys, or any of the adjacent campers 66 � 1 that evening? 2 A No, sir, I do not. 3 MR. MOORHEAD: At this time, Randy, I think 4 I'm out of questions, although Mark will probably make 5 me think of some more. 6 MR. EPSTEIN: I'll try not to. 7 THE WITNESS: Okay. 8 9 FURTHER EXAMINATION
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10 BY MR. EPSTEIN: 11 Q Fortunately, John did a good job and asked 12 most of the questions I was going to ask, but I have a 13 few areas I wanted to get back to. 14 I believe we spoke off the record and you 15 mentioned you were in the Navy for a while, stationed up 16 at Treasure Island. I am not sure if it was the Navy or 17 the Army. Which -- 18 A The Navy. 19 Q Navy. How long were you in the Navy? 20 A Four years. A little over. 21 Q What span of years was that? 22 A That would be January -- well, December of 23 '88, technically, to -- I got out in '93, I believe, 24 December. 25 Q You mentioned earlier that you did, at least, 67 � 1 a significant amount of welding during that time, is 2 that correct, while you were in the Navy? 3 A Well, yeah. I was what they call "tin can 4 Navy." I was on a small cruiser, a guided missile 5 cruiser. And so my duties there included some brazing, 6 some -- using oxyacetylene, cutting torches, that kind 7 of things, sometimes. 8 Q Did you receive any kind of certification for 9 that while you were in the Navy? 10 A No. I wasn't a welder. I was -- actually,
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11 it's kind of funny -- but a shipboard firefighter. 12 Called a damage control man. So we had to use them to 13 possibly cut through water-tank doors, stuff like that. 14 Q So using the torches was sort of more 15 incidental to your duties in the Navy, if you will, 16 rather than being the main focus of what you were to do? 17 A Yes, sir. 18 Q And you were -- actually, you spent time 19 stationed at sea while you were in the Navy? 20 A Oh, yes, sir. Yes, sir. 21 Q During your time in the Navy, did you have 22 occasion to use MAPP gas torches? 23 A No. That was -- well, yes. Yes, in few 24 circumstances, 'cause we also did -- like I told you, I 25 was on a smaller ship. So we also did hull technician's 68 � 1 job, which involved a lot of plumbing. So I did some 2 occasional brazing in which we did use MAPP gas for 3 brazing. 4 Q After you got out of the Navy in approximately 5 1983, what was the next job you held? 6 A Let's see. That was a ways back. I managed 7 nightclubs for probably 13 years. 8 Q Okay. Rather than going through your job 9 history, let me ask you: Since you've been out of the 10 Navy, have you had occasion to use welding or splitting 11 torches? 12 A Cutting torches?
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13 Q Cutting torches. 14 A No. I've used MAPP gas a couple of times, 15 brazing, like, water lines or stuff on my RV, but that's 16 it. 17 Q That was personal home use? 18 A Yes, sir. 19 Q Is that part of your job duties at Campland at 20 all to use them? 21 A Oh, no. Right now, I live in an RV. 22 Q So you've done basically home plumbing and 23 pipe repairs, basically? 24 A Right. 25 Q Both you and Mr. Ratliff used the term "fire 69 � 1 ring." Is that another way of saying "fire pit"? 2 A Yes. They are used for the same thing. The 3 only thing is, ours are mobile, as you can see in the 4 photograph. 5 Q Exhibit 6? 6 A Exhibit 7. 7 Q "7," yeah. 8 A Exhibit 7. They are cylindrical, made of a 9 piece of rebar and then put into a cement poured over 10 the rebar. So the rebar holds the cement ring together. 11 And we can relocate them. They can be turned on the 12 side and actually rolled to different areas, the bottom 13 of it being the sand that we put it on.
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14 Q So they are actually portable fire pits? 15 A Yeah. They're rings, exactly. 16 Q And the ring is made of, sounds like, 17 reinforced concrete? 18 A Yes. It's cement with rebar. They use rebar, 19 which is standard tubular steel, and they make a -- weld 20 that into a circle and set it into a die, where they put 21 the cement. And it makes almost like a little curvy 22 rings type thing. 23 Q Getting back to your testimony a little 24 earlier, I believe you recalled hearing, essentially, 25 four different versions of the story of what might have 70 � 1 happened, from different people, and you couldn't place 2 necessarily the identity of each of those people, but 3 one of them was, you had heard somebody say that they 4 thought Mr. Shalaby might have been using the torch to 5 light a water heater. 6 A It was -- like I had said, I couldn't remember 7 if it was a water heater or a campfire. He was using 8 the torch to ignite a source. 9 Q Okay. One of the individuals you recall 10 saying something to the effect that he was -- that he or 11 she thought Mr. Shalaby was kicking around the cylinder 12 in the coals; is that correct? 13 A Yes. That was -- 14 Q All right. And then one of the individuals, 15 or one person or group of persons, also said that they
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16 thought Mr. Shalaby may have been hitting the torch on 17 the fire ring that we were just describing; is that 18 correct? 19 A Right. 20 Q All right. 21 A Like I said, those are just, like, hearsay 22 things that we heard in the general -- 23 Q And I was just going to -- you didn't 24 actually -- first of all, you weren't at campsite D19 25 before the -- or at the moment the incident occurred; is 71 � 1 that correct? 2 A No, sir. No, sir. 3 Q And you didn't personally see Mr. Shalaby or 4 anyone take the torch and strike it against anything? 5 A No, sir. I didn't see any of the -- the 6 allegations of what might have happened. 7 Q Okay. And I think you answered this question, 8 but just so I can recall, you didn't see any evidence on 9 the torch itself consistent with it being banged against 10 a hard surface; is that correct? 11 A No, sir. 12 Q Getting back to the portion of the torch -- 13 the tank that you saw lying on the ground, you mentioned 14 earlier that you saw a split between the -- at the point 15 where the neck reaches the -- I don't know if you'd call 16 it the top lip or where the ring is?
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17 A Right. 18 Q Can you describe any more the appearance of 19 the split you saw there? I mean, could you tell, for 20 instance, the direction in which the metal had separated 21 or come apart? 22 A Yeah, you could. Well, like I said, it was 23 right at where the -- where the threads meet the actual 24 shoulders of the cylinder. And it was elliptical in 25 shape. And you could tell it was -- it was -- it's hard 72 � 1 to explain. There were little bends out, you know, 2 like -- like -- 3 Q Bends in an outwardly direction? 4 A Yeah. Yeah. Like a split. Like -- I'm 5 trying to think of what -- you could just -- you could 6 see that there wasn't a puncture going in. You know 7 what I mean? There was the lip. The edges of it 8 were -- were kind of out. 9 Q In examining the split for however long you 10 did, could you get a sense, based on your experience, of 11 what might have caused that to occur? 12 A The actual cause? No. I did see, right where 13 the split was -- 'cause it was right at the neck of 14 where the torch body meets the bottle -- it was actually 15 bent. Like, the torch body itself and the -- and 16 everything above where the split was was actually, like, 17 bent off to the side a little bit. You know what I 18 mean?
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19 Q In an outwardly direction, away from the 20 inside of the bottle? 21 A I can -- At the opening of the split. If it 22 was right at the seam, the split would be going around 23 the neck. Right where it opened, the top edge, it bent 24 the -- do you understand? The neck of the bottle 25 actually, like, bent a little bit, so it wasn't 73 � 1 completely straight. 2 Q Yes. 3 A Where the -- where it blew out the neck of the 4 bottle, actually, it would have been a little cockeyed. 5 Q I'm just -- I see what you're doing with your 6 fingers. I'm just describing it for the record, because 7 it's -- 8 A I'm sitting here, trying to word it. And it's 9 almost impossible. 10 Q When you were showing how it was bent, you 11 meant it was bent in a direction from the inside of the 12 tank outward? 13 A Right. The edges would have been curled out, 14 and the split itself caused the actual neck to be 15 offset. 16 Q Okay. Then, getting back to the issue of the 17 torch, or the torch tip, as it's been called, if you 18 were to look at both -- what's been marked as 19 Exhibits 6 and 7, in looking at those photographs, as
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20 you sit here today, can you say with any -- with 21 certainty that that was not the torch tip that you saw 22 on the evening of the incident? 23 A With certainty, no. 24 Q But as you sit here today, you have some sort 25 of recollection that the torch tip may have been one 74 � 1 that you were more familiar seeing as attached to MAPP 2 gas -- excuse me -- to a propane tank? 3 A To my -- to my knowledge. I can't say, you 4 know, as a written fact, that that was it. 5 Q I understand. You didn't, for example, look 6 closely at the torch itself to see any wording on it 7 that said "Propane Torch" or anything like that? 8 A No, sir. No, sir. 9 Q Do you recall, after the incident, and after 10 the fire department and the EMS personnel had left, 11 examining the torch with Mr. Ratliff? Do you have any 12 recollection of doing that? 13 A I remember us looking at it as far as when it 14 was laying in the dirt, like, you know, staring -- like 15 me and him looking down like this. 16 And I also remember -- I never physically had 17 any hands on it. I believe Warren did, and I believe we 18 might have looked at it at the gate, at the split on the 19 side. I guess we were more focused on, actually, 20 Mr. Shalaby, you know, his thing and the torch thing. 21 But we were looking at the torch. We were mainly
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22 looking at the split, you know, going, "Wow." 23 Q And, again, when I ask you these questions, I 24 realize that it's been about a year on so. I just want 25 your best recollection. 75 � 1 A Okay. 2 Q Do you remember: For instance, the split that 3 you and Mr. Ratliff observed, was that -- was that 4 something you had seen before in a MAPP gas tank? 5 A I've never seen it -- I've seen large 6 cylinders, like, when I was in the service, like, the 7 actual tops break off, and I've seen them spin around. 8 That's the big welding cylinders. I've never seen a 9 MAPP gas or a propane cylinder split like that. 10 Q Was it your impression that Mr. Ratliff found 11 that split to be unusual, in his experience? 12 A I think we both did. I mean, it's something 13 that you don't see every day. 14 Q Do you remember any other words that you and 15 Mr. Ratliff exchanged about the split that you saw in 16 the torch -- I mean, in the tank? 17 A Not exact wordings or what it is. I know that 18 we were amazed. It was quite a split. 19 Q Okay. Was there anything remarkable about the 20 torch, the torch tip, that you were talking about with 21 Mr. Ratliff at that moment, up by the front gate? 22 A I don't remember. I can't remember.
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23 Q That's okay. 24 A I remember that me and Warren had -- had -- we 25 both -- we were discussing the tip and we had varying 76 � 1 views on it, but -- 2 Q Okay. And can you describe for me what your 3 varying views were? 4 A I stated that I didn't think it was the 5 correct tip. Like I said, I can't identify through the 6 picture whether -- 7 Q Understood. 8 A But he was saying that it was fine. I don't 9 know. 10 Q As you sit here today, do you have any opinion 11 or sense of what caused the torch to do what it did on 12 the night of the incident? 13 A Me not being a -- the professional fire 14 investigator, no. I mean, I realize there was some kind 15 of -- some kind of explosion. I don't know what 16 happened to create that explosion. I couldn't -- I 17 wasn't there. 18 Q All right. This delay is good. That means 19 I'm getting close to the end here. 20 A No problem. One thing I did want to bring to 21 your attention -- I don't know if it needs to be on the 22 record or not -- on the subpoena, my name is misspelled. 23 But it's -p-h-e-n-s. That's all. 24 Q On the evening of the incident, can you
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25 describe for me as best as you can the weather 77 � 1 conditions that night. 2 A I know it was -- it wasn't raining or 3 anything. It was a standard San Diego summer night, 4 probably, I'd say, mid-seventies. It was pitch-black. 5 It was dark. 6 Q Any breeze that you can recall? 7 A That, I don't know. I'm not sure. 8 Q In examining the cylinder on the evening of 9 the incident, do you recall any part of it being dimpled 10 or crushed or distorted in any way? 11 A No. 12 MR. EPSTEIN: Okay. Thank you. 13 14 FURTHER EXAMINATION 15 BY MR. MOORHEAD: 16 Q One thing I want to follow up on, Randy, 17 because I'm not sure that the record is going to be 18 clear with some of our descriptions and stuff, but let's 19 use Exhibit 6 as our frame of reference here, because 20 it's got a pretty good picture of a cylinder and a 21 torch. And let's just assume, for the purposes of our 22 series of questions, that that's the cylinder and the 23 torch involved in the incident before the event occurs. 24 When you saw it after the incident, you've 25 described the neck of the cylinder being tilted, right?
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78 � 1 A Yes, sir. 2 Q Again, this is just for the sake of example. 3 If we use Exhibit 6 and we indicate that it was tilted 4 to your right, towards the woman sitting there, getting 5 ready for the Metallica concert, both the neck of the 6 cylinder and the black part of the torch that attaches 7 to it would have been tilted to your right; is that 8 correct? 9 A If I remember right, it was my left, because I 10 believe the split -- the split would have been right at 11 the neck level right here. But yeah. 12 Q Let's use left, then. Looking at that 13 photograph, the neck and the black portion of the torch 14 that we see in this laser color photocopy of the 15 photograph would have been tilted off center towards 16 your left? 17 A Yes, sir. Yes, sir. 18 Q All right. And the split, I think we've 19 called it, or fracture, or whatever it is, would have 20 been, under those circumstances, on the right side of 21 the neck -- 22 A Yes. 23 Q -- is that correct? 24 A Yes. Almost exactly where -- where everything 25 meets -- where the neck meets the shoulder body, right 79
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� 1 here, going -- going in a circular pattern. 2 Q Can you give us any estimate at all of how 3 far, in degrees, off to dead center this angle was? 4 Straight across would be 90 degrees. 5 A Yeah. 6 Q Straight up is zero. 7 A Probably, maybe, like, what, 5 degrees, 8 10 degrees, maybe. It would -- if it was directly up 9 and down, it would have been like that. So I'd say 10 about five to 10 degrees. 11 Q Okay. Now, do you know, as you sit here 12 today, Randy, whether the crack that you saw, or split, 13 or whatever you want to call it, caused the neck to tilt 14 or whether the neck got bent, for the sake of example, 15 by being banged on the fire ring, and that caused the 16 crack? Do you know one way or the other? 17 A I couldn't tell what caused the crack, no. 18 Q There could have been some other cause, as 19 well? 20 A Could have been, yeah. 21 MR. EPSTEIN: Objection. Calls for 22 speculation. 23 MR. MOORHEAD: No further questions. Thanks, 24 Randy. 25 MR. EPSTEIN: I'm sorry. One last one. 80 �
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1 FURTHER EXAMINATION 2 BY MR. EPSTEIN: 3 Q The woman who is depicted in Exhibits 6 and 7, 4 do you recognize her? 5 A Well, I recognize the woman. I think that's 6 Ms. Shalaby. I believe. 7 Q And the boy who is depicted in Exhibit 7, do 8 you recognize him? 9 A That's -- that's the adolescent male that I 10 described. 11 Q And do you recognize the girl who is depicted 12 in the picture? 13 A There was a young female girl there. I 14 think -- I can't really point her out, but I know -- I 15 recognize the boy. 16 MR. EPSTEIN: Okay. Thank you. 17 THE WITNESS: You're welcome. 18 MR. MOORHEAD: Nothing further. Let's just 19 have the same stipulation. 20 For your benefit -- we can go off the record. 21 (Deposition concluded at 2:45 p.m.) 22 * * * * * 23 24 25 81
From: Richard A. Ergo [mailto:[email protected]] Sent: Friday, December 19, 2008 6:06 PM To: 'Alan Gould' Cc: William T. Nagle; Cathleen S. Huang; 'Naylor, Beth S.'; '[email protected]' Subject: RE: motion scheduling dates �Alan,
Please explain to your client that while I sympathize with his injuries -- and with anyone who suffers injuries -- these cylinders do not fracture without being subjected to substantial force. Of course, a torch should never be used for hitting or tapping anything. Regardless, neither the torch nor the cylinder will fail if lightly struck against a piece of firewood. Even if it were possible for the subject cylinder to have been so fragile as to fracture upon light tapping, the cylinder wouldhave failed far before Mr. Shalaby's accident occurred. In short, the third party testimony regarding the condition of the cylinder (the size of the fracture and the orientation of the torch, among other things) is not consistent with any of Mr. Shalaby's versions of how the accident occurred.
Rich
From: Alan Gould [mailto:[email protected]] Sent: Friday, December 19, 2008 5:17 PM To: Richard A. Ergo Subject: RE: motion scheduling dates
Case 3:07-cv-02107-MMA-BLM Document 173-13 Filed 05/14/2009 Page 1 of 9
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Alan J. Gould SBN 68446Law Office of Gould and Hahn5801 Christie Ave, suite 385Emeryville, CA 94608Tel. 510-428-2229, fax [email protected]
Andrew W. Shalaby SBN 2068417525 Leviston AveEl Cerrito, CA 94530Tel. 510-528-8500, fax [email protected]
Attorneys for Plaintiffs Andrew Shalaby and Sonia Dunn-Ruiz
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA - SAN DIEGO
ANDREW W. SHALABY andSONIA DUNN-RUIZ,
Plaintiff,vs.
NEWELL RUBBERMAID, INC. ETAL,
Defendant.
07CV2107 MMA
DECLARATION OF SONIADUNN-RUIZ IN SUPPORT OFPLAINTIFFS’ CONSOLIDATEDOPPOSITION TO DEFENDANTS’MOTIONS TO EXCLUDE“UNTIMELY” EXPERTOPINIONS, EXCLUDE EXPERTSROBERT ANDERSON ANDALISON VRANDENBURGH, ANDBERNZOMATIC’S MOTION FORSUMMARY JUDGMENT
Date: May 29, 2009Time: 2:30 p.m.Courtroom: 5Judge: Hon. Michael M. Anello
I, Sonia Dunn-Ruiz, declare as follows:
1. I, Sonia Dunn-Ruiz, am a plaintiff in the above captioned case.
Dunn-Ruiz decl., PTF’s Consolidated Opp. to Mtns to Exclude Expert Opinions,Experts, and Irwin’s MSJ 07cv2107 MMA 1
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2. During the week of approximately April 15th through April 21, 2006,
my family and I were at Campland on the Bay (Campland), a camping resort
located on Mission Bay in San Diego, CA.
3. On the evening of April 21, 2006, during our stay at Campland, my
husband, Andrew Shalaby, was severely injured when attempted to light a
campfire with his Bernzomatic MAPP gas torch and cylinder.
4. During the evening of April 21, 2006, at approximately 8:00 p.m.
my husband and I had a campfire at our campsite.
5. The campfire had died down to only a glowing ember and at
approximately 9:45 we decided that we would like to have another campfire.
6. I witnessed my husband pick up 3 or 4 pieces of firewood and place
them in the firepit. I then saw him pick up the Bernzomatic MAPP gas torch from
the picnic table, walk to the firepit, and bend over at the waist. I told him I was
going to use the bathroom in the motorhome and I started walking to the
motorhome. I was about 3 or 4 strides from where I had originally been when the
Bernzomatic MAPP gas cylinder breached.
7. I was witness to my husband’s injury as I heard the gas escape from
the MAPP gas cylinder with a loud “whooshing” sound, saw the explosion fire as it
reflected off our motor home and I witnessed him on fire. I turned around and saw
him engulfed in flames, with the cylinder in his right hand (as opposed to holding
the torch handle portion). I saw him throw the Bernzomatic cylinder out of his
right hand and shortly thereafter the fire that engulfed him went out.
8. My husband was treated by emergency medical and safety staff
employed by the city and/or county of San Diego and was transported to the
University of California San Diego Medical Hospital Intensive Care Burn Unit by
ambulance.
9. I am familiar with the Bernzomatic torch and cylinder that my
Dunn-Ruiz decl., PTF’s Consolidated Opp. to Mtns to Exclude Expert Opinions,Experts, and Irwin’s MSJ 07cv2107 MMA 2
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husband was using the night of the injury.
10. I will, if called on to testify in court, give an accurate and detailed
account the injury, and it’s aftereffect on our lives.
I declare under penalty of perjury of the laws of the State of California that the
foregoing statements are true and correct, and if called to testify as a witness I can and
will testify competently thereto.
Executed on May 14, 2009, at El Cerrito, California
______________________________
Sonia Dunn-Ruiz
Dunn-Ruiz decl., PTF’s Consolidated Opp. to Mtns to Exclude Expert Opinions,Experts, and Irwin’s MSJ 07cv2107 MMA 1
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Alan J. Gould SBN 68446Law Office of Gould and Hahn5801 Christie Ave, suite 385Emeryville, CA 94608Tel. 510-428-2229, fax [email protected]
Andrew W. Shalaby SBN 2068417525 Leviston AveEl Cerrito, CA 94530Tel. 510-528-8500, fax [email protected]
Attorneys for Plaintiffs Andrew Shalaby and Sonia Dunn-Ruiz
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA - SAN DIEGO
ANDREW W. SHALABY andSONIA DUNN-RUIZ,
Plaintiff,vs.
NEWELL RUBBERMAID, INC. ETAL,
Defendant.
07CV2107 MMA
DECLARATION OF ANDREW W.SHALABY IN SUPPORT OFPLAINTIFFS’ CONSOLIDATEDOPPOSITION TO DEFENDANTS’MOTIONS TO EXCLUDE“UNTIMELY” EXPERTOPINIONS, EXCLUDE EXPERTSROBERT ANDERSON ANDALISON VRANDENBURGH, ANDBERNZOMATIC’S MOTION FORSUMMARY JUDGMENT
Date: May 29, 2009Time: 2:30 p.m.Courtroom: 5Judge: Hon. Michael M. Anello
I, Andrew W. Shalaby, declare as follows:
1. Exhibit 1 attached hereto is a true and correct copy of a photograph of
the actual torch that was involved in his injury.
Shalaby decl., PTF’s Consolidated Opp. to Mtns to Exclude Expert Opinions, Experts,and Irwin’s Mtn/Summary Judgment 07cv2107 MMA 1
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2. Exhibit 2 attached hereto is a true and correct copy of the closeup of
the actual tor ch involved in his injury.
3. Exhibit 3 attached hereto is a true and correct copy of the packaging
of a Bernzomatic TS400 torch and cylinder combination kit.
4. Exhibit 4 attached hereto is a true and correct copy of a cylinder with
a crack along the neck found in my garage in the later part of the year 2006.
5. Exhibit 5 attached hereto is a true and correct copy of Robert N.
Anderson’s cylinder that fractured along the brazed joint area during testing.
6. Exhibit 6 attached hereto is a true and correct copy of a close-up photo
of one of Robert N. Anderson’s cylinders that fractured along the brazed joint area
during his testing.
7. Exhibit 7 attached hereto is a true and correct copy of a cylinder which
was purchased new in the condition shown, according to Dr. Anderson’s assistant,
Chris Sneider.
8. Exhibit 8 attached hereto is a true and correct copy of a close-up
photograph of Exhibit 7.
9. Exhibit 9 attached hereto is a true and correct copy of a cylinder I
purchased new, which contained the crack shown at the brazed joint at the time of
purchase.
10. Exhibit 10 attached hereto is a true and correct copy of a photograph of
the injury sustained in the face on April 21, 2006.
11. Exhibit 11 attached hereto is a true and correct copy of the injuries to my
left hand sustained on April 21, 2006.
12. Exhibit 12 attached hereto is a true and correct copy of a photo of injuries
I sustained on April 21, 2006 to the inside of my left hand.
13. Exhibit 13 attached hereto is a true and correct copy of a photo of
injuries I sustained on April 21, 2006 to the inside of my right hand.
Shalaby decl., PTF’s Consolidated Opp. to Mtns to Exclude Expert Opinions, Experts,and Irwin’s Mtn/Summary Judgment 07cv2107 MMA 2
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14. Exhibit 14 attached hereto is a true and correct copy of a photo of injuries
I sustained on April 21, 2006 to my left leg.
15. Exhibit 15 attached hereto is a true and correct copy of a photo of
injuries I sustained on April 21, 2006 to my right leg.
16. Exhibit 16 attached hereto is a true and correct copy of a photo of
injuries I sustained on April 21, 2006 to both of my legs.
17. Exhibit 17 attached hereto is a true and correct copy of a photo depicting
the manner with which I held the torch on the date of my injury.
18. Exhibit 18 attached hereto is a true and correct copy of my general
position and posture at the time of my April 21, 2006 injury.
19. Exhibit 19 attached hereto is a true and correct copy of the cylinder held
in my hand, evidencing that it was not in my hand at the time of injury in the manner
shown, because my finger would have been over the failed area of the cylinder and
would have been injured, and sustained no injury.
20. Exhibit 20 attached hereto is a true and correct copy of a photo I took
depicting the manner of tip testing employed by Dr. Anderson September 26, 2008.
21. Exhibit 21 attached hereto is a true and correct photo of the three tips Dr.
Anderson tested September 26, 2008.
22. Exhibit 22 is a photo showing the manner of testing Dr. Anderson used
on September 26, 2008 to test the cylinder.
23. Exhibit 23 attached hereto is a true and correct photo of the cylinder Dr.
Anderson tested on September 26, 2008, bent at 15 foot-pounds of force.
24. Exhibit 24 attached hereto is a true and correct copy of the warning label
on one of my cylinders.
25. Exhibit 25 attached hereto is a true and correct copy of the warning label
on one of my cylinders.
26. Exhibit 26 attached hereto is a true and correct copy of the warning label
Shalaby decl., PTF’s Consolidated Opp. to Mtns to Exclude Expert Opinions, Experts,and Irwin’s Mtn/Summary Judgment 07cv2107 MMA 3
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on one of my cylinders.
27. All of the facts set forth in the statement of the facts of the memorandum
of points and authorities accompanied this declaration, describing my purchase of the
subject porch and cylinder, stating that I lit a campfire at 8:00 PM without incident on
April 21, 2006, stating that I attempted to build a new campfire on April 21, 2006, and
my observation that the tip of the torch came in contact with a piece of firewood at the
time of the explosion, are true and correct and within my personal knowledge. I
provide the same basic facts, declaration at document number 93-5. While I had
varying recollections of certain events, I am certain that the MAPP gas torch and
cylinder I used at the time of injury were in the same condition as they were at the
time of purchase, were never subjected to abuse or misuse, and were properly and
safely stored in a dedicated compartment in my motorhome. I always kept the
components detached and wrapped in thick terrycloth towels. I have a "engraved"
visual recollection of the tip of the torch tapping against a piece of firewood at the
time of the explosion, with a force I would estimate as equal to the amount of force
one typically uses to knock on someone's front door.
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and within my personal knowledge, and if sworn as
a witness I can and will testify competently thereto.
Executed May 14, 2009 in El Cerrito, CA
Andrew W. Shalaby
Shalaby decl., PTF’s Consolidated Opp. to Mtns to Exclude Expert Opinions, Experts,and Irwin’s Mtn/Summary Judgment 07cv2107 MMA 4
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Alan J. Gould SBN 68446Law Office of Gould and Hahn5801 Christie Ave, suite 385Emeryville, CA 94608Tel. 510-428-2229, fax [email protected]
Andrew W. Shalaby SBN 2068417525 Leviston AveEl Cerrito, CA 94530Tel. 510-528-8500, fax [email protected]
Attorneys for Plaintiffs Andrew Shalaby and Sonia Dunn-Ruiz
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA - SAN DIEGO
ANDREW W. SHALABY andSONIA DUNN-RUIZ,
Plaintiff,vs.
NEWELL RUBBERMAID, INC. ETAL,
Defendant.
07CV2107 MMA
DECLARATION OF ANDREW W.SHALABY IN SUPPORT OF
NOTICE OF EXHIBITDISCREPANCIES IN RELATIONTO DOCUMENT #172, ANDCORRECTIONS THERETO
Date: May 29, 2009Time: 2:30 p.m.Courtroom: 5Judge: Hon. Michael M. Anello
I, Andrew W. Shalaby, declare as follows:
1. There are some errors noted on my declaration filed May 14, 2009,
document number 172-2, in that the exhibit numbers referenced on my declaration for
exhibits 4, 17, 19, 20, 21, 21, 23, 24, 25, and 26 do not match the actual exhibits, and
on Plaintiffs’ Memorandum of Points and Authorities (doc. 172) there were four
reference errors pertaining to those exhibits.
Shalaby decl., Notice of Exhibit Discrepancies re Doc. 172 07cv2107 MMA 1
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2. Exhibit 4 is correctly referenced throughout Plaintiffs Memorandum of
Points and Authorities. I intended to identify it on my declaration as the cylinder I
purchased new on September 20, 2008 to use as an exemplar, which I found it at
Home Depot in El Cerrito, and that the area where the card inserted in that cylinder
contains a significant void of the brazing compound, which is one of the
manufacturing defects identified by Dr. Anderson, as explained on his declaration and
expert reports. On my declaration at doc. 172-2, I inadvertently described exhibit 9,
not exhibit 4.
3. Exhibit 17 shows the manner with which I would typically hold the
TS4000 torch, but this was not the manner with which I held the assembly on the date
of the injury. The description of “Exhibit 19" on my declaration was supposed to
accompany reference to Exhibit 17. Exhibit 17 was a photo depiction intended to
show that because the cylinder failed at the brazed joint area directly below my index
finger, and my index finger was not injured, it is evident I held the assembly by the
cylinder itself, not the handle, but there is an error with respect to that exhibit as well,
as discussed next.
4. Exhibit 19 shows the manner with which I held the cylinder at the time
of injury, and a better picture is shown at doc. 172-36 (p. 8 fig. 18), but on page 43
lines 10 and 11 of Plaintiffs’ Memorandum of Points and Authorities (doc. 172 “Page
47 of 49") the memorandum inadvertently references the wrong exhibit. It references
“exhibit 19" instead of exhibit 18.
5. Exhibit 20 on my declaration (doc. 172) should be “Exhibit 19.” Exhibit
19 is the one described on page 3:15 of my declaration, it is a photo depicting the
manner with which Dr. Anderson performed his stress tests of the fracture grooves on
the machine used to measure the application of force.
6. Exhibit 21 on my declaration (doc. 172) should state “Exhibit 20.”
Exhibit 20 shows the three TS4000 torches after they had been fractured on the
Shalaby decl., Notice of Exhibit Discrepancies re Doc. 172 07cv2107 MMA 2
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machine shown in exhibit 19.
7. Exhibit 22 on my declaration (doc. 172) should state “Exhibit 21.”
Exhibit 21 shows the manner Dr. Anderson used to apply pressure on the test cylinder,
below the fracture groove, on the machine measuring the amount of force applied.
8. Exhibit 23 on my declaration (doc. 172) should state “Exhibit 22.”
Exhibit 22 is the photo of the cylinder Dr. Anderson tested by application of force
below the TS4000 torch’s fracture groove, showing the “deformation” of the cylinder,
which commenced at 15 foot-pounds of force, as described on page 3, lines 21-22 of
my declaration. There is a corresponding error on page 15 of Plaintiffs’ Memorandum
of Points and Authorities (doc. 172), at line 21, in that it references “exhibit 23.” The
reference should read “exhibit 22 to Shalaby decl.”
9. Exhibits 24, 25, and 26 on my declaration (doc. 172) should state
“Exhibit 23, 24, and 25,” and there is no “Exhibit 26.” Exhibits 23, 24, and 25 are
photos of the warning labels of the MAPP gas cylinders. A corresponding error exists
on page 41 of Plaintiffs’ Memorandum of Points and Authorities (doc. 172), at page
41:1, in that it inadvertently references “Exh. 24 and 26 to Shalaby decl.” The correct
reference should read, “exhibits 23-25 to Shalaby decl.”
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and within my personal knowledge, and if sworn as
a witness I can and will testify competently thereto.
Executed May 16, 2009 in El Cerrito, CA
Andrew W. Shalaby
Shalaby decl., Notice of Exhibit Discrepancies re Doc. 172 07cv2107 MMA 3
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Alan J. Gould SBN 68446Law Office of Gould and Hahn5801 Christie Ave, suite 385Emeryville, CA 94608Tel. 510-428-2229, fax [email protected]
Andrew W. Shalaby SBN 2068417525 Leviston AveEl Cerrito, CA 94530Tel. 510-528-8500, fax [email protected]
Attorneys for Plaintiffs Andrew Shalaby and Sonia Dunn-Ruiz
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ANDREW SHALABY and SONIADUNN-RUIZ,
Plaintiffs,vs.
NEWELL RUBBERMAID, INC. , et al.,
Defendants.
07cv2107 MMA
DECLARATION OF ROBERT N.ANDERSON IN SUPPORT OFPLAINTIFFS’ OPPOSITION TOMOTIONS TO EXCLUDE EXPERTROBERT ANDERSON, ANDMOTIONS TO EXCLUDEPLAINTIFFS FROM RELYING ONEXPERT OPINIONS NOT TIMELYDISCLOSED IN OPPOSITION TOSUMMARY JUDGMENT
Date: May 29, 2009Time: 2:30 p.m.Courtroom: 5Judge: Hon. Michael M. Anello
I, Robert N. Anderson, declare as follows:
1. Exhibit 1 attached hereto is a true and correct copy of my curriculum
vitae.
2. Exhibit 2 attached hereto consists of relevant text book materials
evidencing generally accepted metallurgy techniques and procedures, addressing one
of the Daubert (F.R.Evid. 702) factors of consideration. As explained on the exhibit,
DECLARATION of ROBERT N ANDERSON / OPP. TO MTNS TO EXCLUDE EXPERTAND FINDINGS Case No. 07cv2107 MMA1
Case 3:07-cv-02107-MMA-BLM Document 172-28 Filed 05/14/2009 Page 1 of 9
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these book materials address (1) whether a scientific theory of technique can be
tested; (2) whether the theory or technique as been subject to peer review and
publication; (3) the known or potential rate of error and the existence and
maintenance of standards controlling the technique’s operation; and (4) whether the
technique is generally accepted. The testing carried out in this case included:
a. Hardness testing of brazing material, valve and cylinder.
b. Tension / Compression testing of torch.
c. Metallography of brazed area.
d. Corrosion testing.
These are all generally accepted procedures and are described in many text books,
including the ones referenced on Exhibit 2.
3. Exhibit 3 attached hereto is a true and correct copy of the 49 CFR 178,
section 178.65 Specifications for D.O.T. 39 non-reusable (non-refillable) cylinders,
referenced on my June 25, 2008 report (Exhibit 5).
4. Exhibit 4 attached hereto is a true and correct copy of the report titled,
“The Behaviour of ‘Bernzomatic’ MAPP and Propane Cartridges When Exposed to
Heat and Flame, ” an important study published December 2006, the objectives of
which are contained on page ii of the report. This report was used as part of my
research materials in relation to this action, and rules out the possibility that the
subject torch had been kicked into a fire and exploded. As the report explains, had the
cylinder been exposed to heat or flame, it’s pressure relief valve would have merely
opened and discharged the contents slowly, increasing as the heat increased, but the
brazed joint of the cylinder would not have failed.
5. Exhibit 5 attached hereto is a true and correct copy of my initial expert
report dated June 25, 2008.
6. Exhibit 6 attached hereto are true and correct microphotographs in
relation to the testing I performed as described on my June 25, 2008 report (exhibit
5).
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7. Exhibit 7 attached hereto is a true and correct copy of my rebuttal expert
report dated July 9, 2008.
8. Exhibit 8 attached hereto is a true and correct copy of my declaration
filed on December 16, 2008 in this action, document number 93-3, accompanying my
September 29, 2008 report, and elaborating on my findings.
9. Exhibit 9 attached hereto is a true and correct copy of my memorandum
of findings dated September 29, 2008, in relation to the testing I performed on
September 26, 2008.
10. Exhibit 10 attached hereto is a closeup photograph of the fracture groove
feature of the TS4000 torch, which is the torch design that pre-dated June 2005
(according to Mr. Ridley of Bernzomatic).
11. Exhibit 11 attached hereto is a closeup photograph of the fracture point
feature replacing the former fracture groove design of the TS4000, which I understand
was implemented in June 2005, per Mr. Ridley of Bernzomatic.
12. Exhibit 12 attached hereto is a photo of the complete TS4000 unit
containing the fracture point design which, according to Mr. Ridley of Bernzomatic,
was implemented in June 2005.
13. Exhibit 13 attached hereto is a photo of both designs of fracture point
features of the TS4000 torches, the former “fracture groove” design, and the
subsequent design utilizing a thinner wall surface at the mixing area of the brass tube,
both units shown side-by-side for ease of distinction.
14. Exhibit 14 attached hereto is a photograph of one of each design of the
fracture grooves discussed above, shown after they had been tested and fractured.
15. Exhibit 15 attached hereto is a true and correct copy of the literature on
the TS4000 Bernzomatic provided to Plaintiffs in discovery, and provided to me for
review in my studies related to this case, bearing Bernzomatic’s Bates stamp
“BZ000095.”
16. Exhibit 16 attached hereto is a true and correct copy of the packaging
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literature accompanying the newer design of fracture point shown in Exhibit 12,
which was inconsistent with the package contents. The package shows the former
fracture “groove” design, but its contents contained the subsequent design shown in
Exhibit 11.
17. Exhibit 17 attached hereto is a summary of photographs of the above
exhibits to aid in comparison of the two different package literatures, and two
different TS4000 fracture point designs.
18. Exhibit 18 attached hereto is a true and correct photograph of the failed
cylinder in the case, Jeffrey A. Vanderlinde v. Ace Hardware Corp., and Bernzomatic,
a Division of Irwin Industrial Tools, State of Minnesota, County of Hennepin, filed
on or about November 6, 2007.
19. Exhibit 19 attached hereto is a true and correct photograph of the failed
cylinder in the case, Richard and Mary Glenn v. Newell Operating Company, dba
Bernzomatic Corporation, et al., Superior Court of California, County of Ventura,
filed on or about June 21, 2007.
20. Exhibit 20 attached hereto is a true and correct photograph of the failed
cylinder in the case, John Barrett and Anthony McWhorter v. Irwin Industrial Tool
Company, et al., U.S. District Court, Tampa, Florida, filed on or about September 27,
2007.
21. Exhibit 21 attached hereto is a true and correct photograph of the torch
used in the John Barrett case, Exhibit 19 referenced above. Please note that the
TS4000 torch showed no signs of impact, and the fracture groove was intact,
consistent with my findings that the cylinders that have failed did so at a measure of
force below that which was required to fail the fracture grooves.
22. Exhibit 22 attached hereto is a true and correct photograph of the failed
cylinder in the case, Timmy Welch and Virginia Welch v. Newell Rubbermaid Inc.,
dba Bernzomatic, et al., State of Louisiana, Parish of Ouachita, filed approx. June
2007.
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23. Exhibit 23 attached hereto is a true and correct photograph of the failed
cylinder in the case, Bradley Englebrick v. Worthington Industries, Newell
Rubbermaid, et al., U.S. Dist. Court, Central Dist., CA, filed on or about November
13, 2008 (after close of discovery in this case).
24. There is question as to whether or not the photographs of other failed
cylinders from other litigations, which I reviewed in the course of my research on this
case, were adequate in support of my opinions and conclusions. It was represented
to me by Plaintiffs’ former counsel, Mark Esptein, that the photographs were all true
and correct copies depicting the actual damage to the cylinders shown. Further, I
spoke with Expert Tom Crane in relation to the Vanderlinde cylinder, and Expert
Ramesh Kar in relation to the Glenn cylinder, and further confirmed the damages as
shown on the photographs of the cylinders from those cases. The “Englebrick”
cylinder photograph was shown to me after the close of expert discovery, because his
suit was filed and discovered after the close of discovery. The close of expert
discovery was on September 30, 2008. I am advised Mr. Englebrick’s case appeared
on the dockets in November 2008.
25. The photographs described above merely supported my conclusions,
which were reached through my independent research as described in paragraph 2
above. My general expert opinion and conclusion, as more fully explained on my
reports specified above, is that the brazed joint area adjoining the valve housing to the
MAPP cylinder, as depicted in exhibits 10 and 11 to my deposition of September 3,
2008, is defectively designed and manufactured, and prone to failure, whether the
failure occurs at the brazed compound itself, or at or on the parent metal adjoined to
the brazing compound.
26. On July 7, 2008 I performed some destructive testing of two Bernzomatic
MAPP gas cylinders, with my assistant, Mr. Chris Schneider. On one of the cylinders,
we attached a nut and a wrench on top of the threads, then performed a “twist” test,
before performing a subsequent “pull” test to force the failure of the cylinder. That
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cylinder was “Exhibit 10" to my September 3, 2008 deposition. The purpose of this
“twist” and “pull” combination test was to try to cause a failure of the “parent metal,”
as opposed to the brazing compound. On the remaining cylinder, we performed
straight “pull” tests, where we applied pressure directly to the threaded portion of the
valve housing, where the torch is typically attached, and measured the amount of force
required to cause failure of the cylinders. The cylinder failed at 30 foot pounds.
Subsequent tests by Dr. Karr showed failure to occur at 12, 16, and 31-32 foot pounds.
Thus, of these four cylinders tested, two failed at a measure of force substantially
lower than the 26 foot pounds of force required to fracture the TS4000 torches, as
subsequently tested on September 26, 2008. In other words, of these four tested
cylinders, there was a 50% defect rate. Any cylinder failing at a measure of force less
than required to fracture the torch’s fracture groove is defective, because it prevents
the fracture groove from performing its intended purpose of preventing the failure and
resultant injury.
27. On April 27, 2009 I sent an email to Plaintiffs’ counsel, Alan Gould. A
true and correct copy of my email is attached as “Exhibit 24" hereto. My email was
in response to Magistrate Major’s statement on her March 11, 2009 order, footnote 2,
stating:
Plaintiffs assert that Dr. Anderson did not know about the fracturegroove until late 2008. Doc. No. 93-3 at 10; doc. no. 125 at 9. Theevidence offered by Defendants overwhelmingly contradicts thisassertion. Doc. No. 117 at 7, exs. 5-7; doc. no. 118 at 4, 9, Huang Decl.at ¶¶ 8-9, exs. 7-9. However, even if Plaintiffs’ representation is true, itis clear Dr. Anderson should have known about the existence of thefracture groove much earlier. As there is no evidence that Defendantsconcealed its existence, Dr. Anderson’s ignorance can only be attributedto his, Plaintiffs’ counsel’s, or Plaintiffs’ carelessness. See Johnson, 975F.2d at 609 (“[C]arelessness is not compatible with a finding of diligenceand offers no reason for a grant of relief.”).
As explained on my email, I learned after the close of expert discovery that the
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(a)
(b)
Figure 1 Photographs of the MAPP gas cylinder W10G57E in (a) the as-received condition, and (b) prior to sectioning for metallography.
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(a)
(b) Box in 2(a) 13X
Figure 2 Section 1 images of (a) overall mounted cross section, and (b) braze cross section.
Outside Surface of Cylinder
Inside Surface of Cylinder
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(a) 50X
(b) 100X
Figure 3 Representative micrographs of the braze at section 1 (Figure 2b).
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(a) 200X
(b) 500X
Figure 4 Representative micrographs of the braze at of section 1 (Figure 2b).
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(a)
(b) Box in 5(a) 16X
Figure 5 Section 2 images of (a) overall mounted cross section, and (b) braze cross section.
Outside Surface of Cylinder
Inside Surface of Cylinder
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(a) 50X
(b) 100X
Figure 6 Representative micrographs of the braze at of section 2 (Figure 5b).
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(a) 200X
(b) 500X
Figure 7 Representative micrographs of the braze at of section 2 (Figure 5b).
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(a)
(b) Box in 8(a) 13X
Figure 8 Section 3 images of (a) overall mounted cross section, and (b) braze cross section.
Outside Surface of Cylinder
Inside Surface of Cylinder
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(a) 50X
(b) 100X
Figure 9 Representative micrographs of the braze at of section 3 (Figure 8b).
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(a) 200X
(b) 500X
Figure 10 Representative micrographs of the braze at of section 3 (Figure 8b).
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(a)
(b) Box in 11(a) 13X
Figure 11 Section 4 images of (a) overall mounted cross section, and (b) braze cross section.
Outside Surface of Cylinder
Outside Surface of Cylinder
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(a) 50X
(b) 100X
Figure 12 Representative micrographs of the braze at of section 4 (Figure 11b).
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(a) 200X
(b) 500X
Figure 13 Representative micrographs of the braze at of section 4 (Figure 11b).
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July 9, 2008 Mark D. Epstein Alborg, Velluva, & Epstein, LLP 200 Pringle Ave., Suite 410 Walnut Creek, CA 94596-7381
Re: Shalaby matter: Review of Reports. Comments.
Dear Mr. Epstein:
At your request, I have reviewed the reports of Exponent and of Thomas Eagar. My comments on their reports are presented below:
Exponent report by Timothy Meyers and William Kane: The investigators did no testing of MAPP gas cylinders and relied on reviewing various documents to form their opinions. The Exponent report proposes three different scenarios that result in the cylinder contents burning Mr. Shalaby. There is no basis to select among the 3 case scenarios that they describe, and the report concludes that “the cause of the fire and Mr. Shalaby’s burns is undetermined.”
Report of Thomas Eagar: Dr. Eagar did no testing of the MAPP gas cylinders and relied on his review of various documents and Code CFR 178.65 requirements to reach his opinion that the cylinder Mr. Shalaby was using did not have deficiencies in design, in material, and in manufacture. He states “It is improbable that a manufacturing deficiency significant enough to result in a failure of the cylinder in service, will ship from the manufacturing facility.” He arrives at abuse being “the sole probable cause of cylinder failure.”
Robert N. Anderson Review and Comments: CFR 178.65 (iii) states “Brazed seams must be assembled with proper fit to ensure complete penetration of the brazing material throughout the brazed joint.” Metallographic examination of a number of commercially obtained cylinders showed this was not the case for the brazing of the center valve to the cylinder and that Bernzomatic was in violation of this requirement. This fact would indicate that the manufacturing deficiency should not be ruled out by Dr. Eager.
If Bernzomatic could not ship a defective cylinder, as stated by Dr. Eagar in his report, then it would necessarily explain all failures in service to be caused by abuse. However, it would not explain the defective brazing found on the commercially obtained cylinders I examined. Also, there is no review of the quality control procedures or analysis to support this claim that a defective cylinder will not leave the manufacturing facility
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Dr. Eagar did not review or comment on the other failures of MAPP gas cylinders that have occurred around the country.
Dr. Eagar states “that the braze joint did not fail….” He also states: “It requires a substantial force or impact to split the steel in the cylinder as described by the witnesses.” The amount of “substantial force” required was not determined or estimated by Dr. Eagar, nor does he have enough information to assert that the braze joint in Mr. Shalaby’s cylinder did not fail.
He is silent on what the level of abuse is to be critical and if Bernzomatic should consider the possibility of customer abuse and therefore design against it, since the consequences are so grave.
Test Observations: I performed testing of the MAPP gas cylinders and determined that the center valve fitting would fail at approximately 30 foot-pounds of force. The failures can happen in the cylinder wall or the brazed joint. This amount of force appears to be above the normal abuse level.
Additionally, flame tests were carried out to demonstrate the failure of the brazed fitting and the characteristics of the resultant fire that occurred at failure.
Please call me if you have any questions.
Sincerely,
Robert N. Anderson, Ph.D., P.E.
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September 29, 2008
Mark D. Epstein Draft for Comments Alborg, Veiluva & Epstein LLP 200 Pringle Avenue, Suite 410 Walnut Creek, CA 94596-7380 Re: Shalaby v. Irwin, et al. Dear Mr. Epstein: On September 26, 2008, I tested the Bernzomatic TS4000 torches and one cylinder. Bernzomatic Torch literature states that “Fracture Groove enhances safety in case torch is dropped.” Old design torches had such fracture grooves. However, the newer torches on the market do not have this Fracture Groove feature. The dimensions of the brass in the newer, un-grooved TS4000 torches are reduced at the very point where the fractures have occurred. The test on 9/26/08 was to determine the force required to fracture the grooved and the new, un-grooved torch. Three torches were tested. The first torch had no grooves and fractured at 26 ft.lbs. Tests 2 and 3 were on the grooved torches and those fractured at 22 ft. lbs. and 23 ft. lbs., respectively. The strength of the valve in a cylinder valve also was tested in a new MAPP gas cylinder that had been purchased just a week before the test. That cylinder, under test, started to deform at 15 ft. lbs. and continued to deform to 25 ft. lbs. without a venting failure. I believe the above tests proved two things: First, it shows that “abuse” of the torch, such as dropping it or striking it on a hard surface or pushing against a resistance, is more likely to cause a fracture in the TS4000 torch itself, rather than to the area of the valve in the cylinder. Second, that unless there are defects present in the cylinder, “abuse” will merely cause deformation of the cylinder and the valve will not vent. These defects in the cylinder that cause it to vent may be the result of manufacturing problems or the result of aging and corrosion. It is likely that Mr. Shalaby was holding the cylinder at the time of his accident and not the TS4000, based on the fact of the lack of burns to his little finger of his right hand. Hence, any force to the cylinder valve most likely was transmitted by the torch tip. Had an “abusive” force been applied to the tip, the brass would have fractured, and not the cylinder. The argument that Mr. Shalaby “abused” the MAPP gas torch and cylinder is false. The TS4000 would fail if forces were applied to it, and a non-defective cylinder should not vent. The conclusion is that the cylinder that Mr. Shalaby was using was defective. Please call me if you have any questions. Sincerely, Robert N. Anderson, Ph.D., P.E.
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In reviewing my deposition and the various items in my file I come to this conclusion: My first inspection (11/15/06) of the Bernzomatic TS4000 torch was in Mr. Epstein's office. No fracture grooves were present on the exemplar torches I examined. I learned later from a 10/1/2008 memo written by Mike Ridley at Bernzomatic that the TS4000 was redesigned in June 2005 and fracture grooves were eliminated. The 7/7/2006 Bernzomatic Glossary in my deposition file mentioning "Fracture Groove: A designed in failure point in the torch." does not tell the reader where this failure point is located on the TS4000. And this term was included in a glossary more than a year after the fracture grooves were eliminated. I was not aware at the time of my 9/3/08 deposition that fracture grooves had once been applied to the brass mixing area of the tube until Mr. Shalaby provided that information after my deposition. I hope this clears things up. Bob Anderson
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Alan J. Gould SBN 68446Law Office of Gould and Hahn5801 Christie Ave, suite 385Emeryville, CA 94608Tel. 510-428-2229, fax [email protected]
Attorneys for PlaintiffsAndrew Shalaby and Sonia Dunn-Ruiz
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ANDREW SHALABY and SONIADUNN-RUIZ, Plaintiffs,
v.
NEWELL RUBBERMAID, INC., et al.
Defendants. And related cross-complaints.
Case Number C 07cv2107 MMA
ORAL ARGUMENT NOTREQUIRED
Date: Febraury 13, 2009Time: 2:30 p.m.Courtroom: 5Judge: Hon. Michael M. Anello
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFPLAINTIFFS’ MOTION TO STRIKE AND EXCLUDE THE HEARSAYALLEGATION THAT PLAINTIFF SHALABY KICKED THE SUBJECTTORCH INTO A CAMPFIRE, AND RELATED THEORIES
F.R.Civ.P. 12(f)(2); Motion In Limine #3Fed.R.Evid. 803, 403
MPA - PTF Strike/Limine #3 To Exclude Allegation That Plaintiff Kicked Subject Torch IntoA Campfire Case No. C 07cv2107 MMA
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INTRODUCTION
Plaintiff Andrew W. Shalaby (hereinafter “Mr. Shalaby”) was severely injured
on April 21, 2006 when he attempted to use a torch assembly, consisting of a
Bernzomatic-brand “”TS4000" torch handle and “MAPP” gas cylinder (hereinafter
“ torch” referencing the entire assembly) to re-light a campfire at Campland by the
Bay (hereinafter “Campland”), in San Diego, California. The torch exploded in Mr.
Shalaby’s right hand. However, the ambulance report written by Paramedic Robert
Kevin Price erroneously stated:
pt was kicking around a propane torch it went into the fire and blew upand burned him. Family called 911. (Exhibit 5)1
Defendants presently have motions for summary judgment pending and referencing
the statement (i.e. Bernzomatic’s MSJ, ecf 45-2, pp.2:25, 3:11). The theory that the
cylinder was kicked into the campfire, and remained in contact with heat or flame
until it ultimately exploded, is herein called the “hot-spot” theory ( i.e. a failure by
way of prolonged contact of the cylinder with a “hot-spot”). The hot-spot theory has
been ruled-out as “impossible” (infra).
Plaintiffs move to strike and exclude all hearsay statements and allegations that
Mr. Shalaby kicked the subject cylinder into the campfire for all purposes in this
action, including presentation of the statements as “evidence” in support of
Defendants’ Motions for Summary Judgment and Daubert motions presently set for
hearing on February 13, 2009 (esp. ecf 45,46, 48-51, 57-66, and 72-76), and
simultaneously present their motion as MOTION IN LIMINE #3 for exclusion of
Defendants’ hot-spot theory at trial.
I. THE HOT-SPOT THEORY IS IMPOSSIBLE IN THIS CASE
Two rangers at the scene of the accident, Warren L. Ratliff and Randy T.
1All exhibits are attached to the accompanying declaration of Alan J. Gould.MPA - PTF Strike/Limine #3 To Exclude Allegation That Plaintiff Kicked Subject Torch IntoA Campfire Case No. C 07cv2107 MMA - 1 -
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Stephens, testified with great detail as to the condition of the subject cylinder and
torch, which they retrieved at the scene. The detailed descriptions of the rangers are
very similar, if not identical, to the breached cylinders from other burn cases (ecf 93-
14 through 93-19). The actual torch and cylinder causing Mr. Shalaby’s injuries,
examined by Rangers Ratliff and Stephens at the scene of the accident, is shown in
fig. 1 of Exhibit 1 to this motion.2 Exhibit 1 figures 3 and 4 are exemplars from the
“Vanderlinde” and “Geltzer” cases posted at www.mapgasinjuries.com (under the
“lawsuits” tab), and prove that the cylinder breached upon contact of the torch tip with
a solid object, not by way of a hot-spot contact with heat or flame. The rangers
testified to the condition of the cylinder and torch, and their testimony describes the
same type of breach which occurs when the tip of the torch strikes a solid object, as
shown in Exhibit 1 figures 3 and 4 (discussed by Plaintiffs’ expert at ecf 93-3):
1. RATLIFF (exhibit 2)
25: 22 - The cylinder had a right-angle bend to it at the torch, where theconnection of the cylinder is, and appeared to be a crack in the cylinderat the bottom thread level of the cylinder.
26:24: It just appeared to be a split along the very bottom, the last threadof the neck.
27:10 [the breach ran] kind of in both directions [vertically andhorizontally].
28: 6 [the bend was] at the base of the nozzle and the torch - the cylinderitself.
28:9 At the explosion part, or whatever the break in the cylinder was, iswhere it was actually bent.
29:20 Q: Can you remember any other thoughts that came to your mindas to what might have caused the bend that you saw in the torch [sic]?
29:23 - Just the natural explosion itself could have- or a faulty - youknow, my personal experience with these cylinders is faulty materials,
2The rangers discarded the original subject torch and cylinder.MPA - PTF Strike/Limine #3 To Exclude Allegation That Plaintiff Kicked Subject Torch IntoA Campfire Case No. C 07cv2107 MMA - 2 -
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manufactured materials.
33:23 Q: Do you remember whether the label was damaged in any way,either burned or scratched off or anything like that?
34:1 - Appeared to be normal wear and tear.
34:16 Q: Was there any soot or burn residue anywhere on the exteriorof the cylinder?
34:18 No, sir...There was some dust from the ground.
36:18 [I] made my initial-or my thorough investigation of the cylinderand then took it back to our ranger station, and it was to be in ourpossession for about two or three days.
67:12 Q: And I believe you testified that the labels had not beendestroyed on the torch, they have not been burned off?
67:15 No, sir. It appeared normal wear and tear to me.
68:3 [the cylinder breach] appeared to be a crack forced open,outward...Like an explosion outward.
68:8 [outward explosion] From inside the container, yes. It was acrack, and just one side of the crack appeared to be a U-shape form.
68:15 Q: And just so the record is clear... you were saying that the crackappeared to be forced outward from inside the neck of the tank?
68:19 Yes...[the] one side of the crack appeared to be more outward thanthe other side of the crack.
69:15 It appears to me that it was banged against– the top of the nozzlewas banged against something over a hard surface and not created thecrack, but maybe, in my experience that weakened the connectionbetween the torch nozzle and the cylinder itself.
70:24 The threaded part was forced at a right angle of the cylinder itself.
71:2 Q: Is that what you were testifying about earlier, that right angle?
71:4 Yes, the right angle. Not the torch nozzle, but the cylinder and thetorch nozzle... Opposite of the bend of the side – on the side of where thecrack was, the angle went to the right; right-side angle of that crack.
73:23 Q: Other than the one crack– I'm going to use the term "crack" –you describe up on the neck of the bottle, did you see any other breachesin the metal bottle of the cylinder or anywhere else?
74:2 No, sir.
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2. STEPHENS (Exhibit 3)
31:4 [the torch assembly] was about a proximity a foot or two beyondthe fire ring, in the dirt.
42:3 [The cylinder was burst open]... right at the top, where it domes andthen creates the threads, it was burst just beyond the threads at the neck.
42:19 It was split approximately 2 ½ inches long...and maybe a quarterinch wide...kind of elliptical-shaped...right at the base of the neck...below the threads.
44:19 Q: was there any evidence, in the area where you saw this fractureof the neck of the cylinder, that there were any by-particles ofcombustion, like soot or anything?
44:23 A: No. In fact, I didn't even see–I didn't even see like a scorchingaround where the crack was. I don't know exactly how the explosionworked, but I didn't see, like, burning to the actual cylinder itself.
45:12 Q.: With respect to the cylinder, still, did it have any labels on it?
45:14 A: Yes, it did. It said–I believe it was "Bernzomatic"...I saw thestandard label that was on it... [the label] was mostly intact.
47:12 Q.: And did [the torch] have any damage to it, consistent withbeing banged on a hard surface, as one of the people that you overheardsaid?
47:16 A: Not that I saw...on the torch body itself, I didn't see anydamage.
48:4 Q.: Do you remember seeing any other damage to the cylinder?
48:8 A: No, sir.
72:24 [Describing the breach] Where the threads meet the actualshoulders of the cylinder. And it was elliptical in shape... there werelittle bends out...like a split... you could see that there wasn't a puncturegoing in... there was the lip... the edges of it were kind of out.
73:15 Everything above where the split was was actually, like, bent offto the side a little bit...it was right at the seam, the split would be goingaround the neck. Right where it opened, the top edge, it bent...the edgeswould have been curled out, and the split itself caused the actual neck tobe offset.
79:24 [the breach was located] where everything meets–where the neckmeets the shoulder body, here, going–going in a circular pattern.
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80:7 [the torch was bent back] 5 degrees, 10 degrees maybe. I'd sayabout five to 10 degrees.
The rangers’ testimony proves impossibility of the hot-spot theory because the
cylinder was not burned, the label was intact, and all the evidence indicated the breach
was precipitated by the torch tip tapping a solid object, exactly as Mr. Ratliff stated:
69:15 It appears to me that it was banged against– the top of the nozzlewas banged against something over a hard surface and not created thecrack, but maybe, in my experience that weakened the connectionbetween the torch nozzle and the cylinder itself.
This is of course consistent with Mr. Shalaby’s admission that he tapped a piece of
firewood, and entirely disproves the hot-spot theory.
The defendants themselves cannot dispute that their hot-spot theory is
impossible, because Defendants’ highly qualified expert, Dr. Thomas A. Eager, a
professor from the Massachusetts Institute of Technology (MIT), has already ruled out
the theory conclusively. When asked his opinion about the hot-spot theory, Dr. Eager
testified (Exhibit 4 at 150:16-152:9):
121:17 - The problem I have with that is Mr. Shalaby described beingengulfed in a flame in the middle of the fireball.3 Shooting out of apressure relief valve is more like being hit with a flame thrower asopposed to being engulfed in a fire ball. If it was coming straight at you,maybe. Then I have to factor in where his burns were. His hands arefairly severely burned. That is consistent with banging it like a hammer.
123:5 Q: As between two the scenarios that have been suggested orproposed or testified to, that is, being Mr. Shalaby either kicking ortossing the cylinder into the fire versus banging it or striking it againsta concrete fire ring, do you find, in your mind, the more probablescenario to be Mr. Shalaby banging the cylinder; is that what yourtestimony?
123;13 A: Using what is called Ockham's Razor, which is the simplestexplanation is the best. That is Ockham's Razor. 1292 AD. In any caseOckham's Razor basically favors banging against the fire ring, it explains
3Exhibit 1 fig. 5 shows the burns were completely circumferential as opposedto burns coming from one direction, further explained by Dr. Eager.MPA - PTF Strike/Limine #3 To Exclude Allegation That Plaintiff Kicked Subject Torch IntoA Campfire Case No. C 07cv2107 MMA - 5 -
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the split, it explains the bend.
152:9 - A: You wouldn't get this type of crack at this location [hadit been kicked into the fire]. You definitely wouldn't get it by puttingit in the fire. You get the pressure relief valve to go first. If thepressure relief valve, for some reason, didn't let go, you'd get a split onthe side. Just like they did in the British test where they defeated thepressure relief or whatever.4 You'd get the highest stresses, the internalpressure stresses, as we've discussed a couple of times today, are on theside of the cylinder not at the top... [Emphasis added.]
Dr. Eager’s reference to the “British test” at 152:9 above is to a report prepared by a
group of scientists in England in December 2006, titled:
The Behaviour of 'Bernzomatic' MAPP and Propane Cartridges WhenExposed to Heat and Flame
The report, Exhibit 8 to the Declaration of Alan J. Gould, further entirely rules out the
hot-spot theory. As discussed and shown in the photos at pages 10, 12, and 14 of the
report, the Bernzomatic MAPP gas cylinders will only fail under a hot-spot exposure
if a pressure relief valve located on top of the cylinders fails, just as Dr. Eager testified
(152:9). More important, however, is the fact that cylinders breaching by hot-spot
(contact with heat or flame) and evidencing product failures (failure to vent) will
entirely explode and defragment, and there would be black carbon all over the metal
fragments (Exhibit 8 report photos at pp. 10, 12, 14). The subject cylinder in this case
had no burn marks or evidence of burns, and did not defragment at all, therefore it
cannot be disputed that Defendants’ hot-spot theory is impossible. In addition, the
hot-spot theory is ruled out entirely because the cylinder was in Mr. Shalaby’s right
hand at the moment of breach (Shalaby declaration at ecf 93-4, ¶ 1, supporting photos
at ecf 93-21 and ecf 93-22).
///
///
4The “British Test” is Exhibit 8.MPA - PTF Strike/Limine #3 To Exclude Allegation That Plaintiff Kicked Subject Torch IntoA Campfire Case No. C 07cv2107 MMA - 6 -
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I. INADMISSIBLE EVIDENCE MAY BE STRICKEN UNDERFRCP 12(f)(2) AND EXCLUDED BY MOTION IN LIMINE
Fed. R. Civ.P. 12(f) specifies in relevant part:
(f) Motion to Strike. The court may strike from a pleading an insufficientdefense or any redundant, immaterial, impertinent, or scandalous matter.The court may act:(1) on its own; or(2) on motion made by a party either before responding to the pleadingor, if a response is not allowed, within 20 days after being served withthe pleading.
A motion to strike under Rule 12(f) should be granted if it can be shown that no
evidence in support of the allegation would be admissible. See Pease & Curren
Refining v. Spectrolab, 744 F.Supp. 945, 947 (C.D.Cal.1990), abrogated on other
grounds by Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015 (9th Cir.1993);
LeDuc v. Kentucky Central Life Ins. Co., 814 F.Supp. 820, 830 (N.D.Cal.1992).
Motions in limine are proper for exclusion of inadmissible and irrelevant
evidence. Padillas v. Stork-Gamco, Inc. (3rd Cir. 1999) 186 F.3d 412, 417; United
States v. Cook (9th Cir. 1979) 608 F.2d 1175, 1186.
II. HEARSAY STATEMENTS NOT SUBJECT TO RULE 803E X C L U S I O N S A R E I N A D M I S S I B L E A B S E N TCIRCUMSTANTIAL GUARANTEES OF TRUSTWORTHINESS Hearsay evidence is “not admissible except as provided by these rules or by
other rules prescribed by the Supreme Court pursuant to statutory authority or by Act
of Congress.” Fed.R.Evid. 802. The question of the admission of hearsay statements,
whether in a criminal or civil case, turns on due process considerations of fairness,
reliability and trustworthiness. U. S. v. Medico, C.A.2 (N.Y.) 1977, 557 F.2d 309,
certiorari denied 98 S.Ct. 614, 434 U.S. 986, 54 L.Ed.2d 480. Constitutional Law
4670.
A [hearsay] statement not specifically covered by any of the foregoingexceptions but having equivalent circumstantial guarantees oftrustworthiness [is not excluded by the hearsay rule], if the court
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determines that (A) the statement is offered as evidence of a materialfact; (B) the statement is more probative on the point for which it isoffered than any other evidence which the proponent can procurethrough reasonable efforts; and (C) the general purposes of these rulesand the interests of justice will best be served by admission of thestatement into evidence . However, a statement may not be admittedunder this exception unless the proponent of it makes known to theadverse party sufficient in advance of the trial or hearing to provide theadverse party with a fair opportunity to prepare to meet it, his intentionto offer the statement and the particulars of it, including the name andaddress of the declarant.
Pursuant to Rule 803(24), the district court must make specific findingsregarding the requisite elements of the exception. Fong v. AmericanAirlines, 626 F.2d 759, 763 (9th Cir.1980).
Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc. 896 F.2d 1542,1552 (C.A.9 (Cal.),1990)
Paramedic Joe Russo was deposed 4/18/07, one year after the incident (Exhibit 7). At
his deposition he testified that a notation was made by his co-paramedic, Robert Kevin
Price, indicating that Plaintiff had kicked the torch assembly into the fire and it
exploded, and elaborated:
24:1 A: My best recollection was I remember the patient stating that hekicked the something. He kicked the thing into the fire and it exploded...I just remember him stating that he kicked it into the fire.
However, Mr. Price was deposed on May 30, 2007 and testified:
26:2 Q: Did you ask Mr. Shalaby about the incident itself, whathappened?
26:4 A: I don’t remember. I can tell you that that’s my job to doit, and I always do it, but I– you know, I didn’t document if Iheard it from him, so I don’t remember.
26:16 Q: Do you recall Joe Russo being by your side?
26:17 A: Yes.
26:18 Q: As you sit here today, do you have any recollection ofMr. Russo asking Mr. Shalaby what happened?
26:21 A: No.
It appears, from reading page 38:14-39:2 of Randy Stephens’ deposition (Exhibit 2)
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that Mr. Stephens or one of the campsite guests may have relayed the story that Mr.
Shalaby “kicked the cylinder into the fire” to Mr. Russo, and Mr. Russo may have
inadvertently thought Mr. Shalaby was the source. The deposition of Randy Stephens
indicates he heard the story from a campsite guest, not from Shalaby:
38:14 Q: Now, before we move away from the campsite, before you left,I guess what you’re telling us – or I gather that you’re telling us that youoverheard conversations between campers, whether they were talking tothemselves, to each other, or talking to fire department personnel aboutwhat happened?
A: Yes, sir.
Q: Do you remember what any of those stories were?
A: There were - like I said, there were a couple. And who to believe, wedon’t know.
Q: I’m not asking you to assess their credibility.
39:2 A: Right. Right. We had heard he was lighting a water heater onthe pilot light. We had also heard - these were - I think there was threedifferent ones that I heard: That he was lighting a campfire and that hewas kicking around the cylinder, like, in the coals. There was, like - hepresumed empty. Now, which one, I don’t know.
Plaintiffs respectfully move to strike and exclude the hearsay statement that Mr.
Shalaby said he kicked the cylinder into the fire on grounds that the statement is
hearsay, and on grounds that Mr. Shalaby does not believe he made the statement to
the paramedics (ecf 42-2, Irwin’s MSJ, p. 2:24-26, citing to “Shalaby Depo.,
184:16-20, Exhibit C”). In addition, the statement is unreliable and lacks
trustworthiness because the hot-spot theory is impossible, since the cylinder breached
while in Mr. Shalaby’s right hand (Supra, Shalaby Decl. ecf. 93-4 ¶ 1).
III. THE HOT-SPOT THEORY AND ALL RELATED HEARSAYSTATEMENTS SHOULD BE EXCLUDED TO PREVENT AWASTE OF TIME AND RESOURCES, ASSURE CORRECTFACTUAL DETERMINATIONS, AVOID UNFAIR PREJUDICE,AND AVOID MISLEADING THE JURY
Relevant evidence is generally admissible (F.R.Evid. 402) unless its probative
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value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. (F.R.Evid. 403.) -
This rule [403] is designed principally to promote policies of assuringcorrect factual determinations in individual cases and actual andperceived fairness in judicial process as a whole. U. S. v. Robinson,C.A.2 (N.Y.) 1976, 544 F.2d 611, on rehearing 560 F.2d 507, certioraridenied 98 S.Ct. 1451, 435 U.S. 905, 55 L.Ed.2d 496.
Here, because the hot-spot theory is virtually impossible, Mr. Shalaby’s alleged
statement that he “kicked the cylinder into the fire” has no probative value, and would
cause an unfair prejudice. The hot-spot theory in its entirety should be stricken from
all of Defendants’ pending motions for summary judgment and adjudication, motions
to exclude Plaintiffs’ experts, and all pending and future motions and pleadings, on
grounds of impossibility of the theory. Presentation of the hot-spot theory at trial
would require an inordinate amount of time and expert testimony unnecessarily, and
would serve no other purpose than to try to mislead the jury into reaching a factual
determination as to a causation theory that is impossible as a matter of law and
physics.
Dated: January 5, 2009 s/ Alan J. Gould, co-counsel for PlaintiffsAndrew Shalaby and Sonia Dunn-Ruiz
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Alan J. Gould SBN 68446Law Office of Gould and Hahn5801 Christie Ave, suite 385Emeryville, CA 94608Tel. 510-428-2229, fax [email protected]
Attorneys for PlaintiffsAndrew Shalaby and Sonia Dunn-Ruiz
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ANDREW SHALABY and SONIADUNN-RUIZ, Plaintiffs,
v.
NEWELL RUBBERMAID, INC., et al.
Defendants. And related cross-complaints.
Case Number Case No. C 07cv2107MMA
MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFPLAINTIFFS’ MOTION TO STRIKEAND EXCLUDE ALL HEARSAYAND DOUBLE HEARSAYSTATEMENTS ALLEGINGPLAINTIFF WAS TRYING TOLIGHT A WATER HEATER WITHTHE SUBJECT TORCH
F.R.Civ.P. 12(f)(2); Motion In Limine #2
ORAL ARGUMENT NOTREQUIRED
Date: Febraury 6, 2009Time: 2:30 p.m.Courtroom: 5Judge: Hon. Michael M. Anello
INTRODUCTION
Plaintiff Andrew W. Shalaby (hereinafter “Mr. Shalaby”) was severely injured
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on April 21, 2006 when he attempted to use a torch assembly, consisting of a
Bernzomatic-brand “”TS4000" torch handle and “MAPP” gas cylinder (hereinafter
“ torch” referencing the assembly) to re-light a campfire at Campland by the Bay
(hereinafter “Campland”), in San Diego, California. The torch exploded in Mr.
Shalaby’s right hand. Mr. Shalaby’s wife, Sonia Dunn-Ruiz (hereinafter “Ms. Dunn-
Ruiz”), had her back turned to Mr. Shalaby the moment of the explosion, and
immediately turned to witness her husband engulfed in a large ball of flame. Other
than these accounts, no one witnessed the moment of the explosion. However, two
Campland rangers, Warren L. Ratliff and Randy T. Stephens, arrived at the scene a
few minutes later. Mr. Ratliff and Mr. Stephens were deposed, and testified to hearsay
and double-hearsay statements as to three different stories told to them by unidentified
bystanders. Plaintiffs move to exclude the hearsay and double-hearsay statements of
Mr. Stephens and Mr. Ratliff for all purposes in this action, including presentation as
“evidence” in support of Defendants’ Motions for Summary Judgment and Daubert
motions presently set for hearing on February 13, 2009 (esp. ecf 45,46, 48-51, 57-66,
and 72-76). The hearsay statements, quoted below, are inadmissible for any purposes
pursuant to Fed.R.Evid. 802, are not subject to any exceptions under Fed.R.Evid. 803
or any other rules of evidence, and any probative value they may have would be
outweighed by the danger of unfair prejudice, and could misleading the jury.
I. INADMISSIBLE EVIDENCE MAY BE STRICKEN UNDERFRCP 12(f)(2) AND EXCLUDED BY MOTION IN LIMINE
Fed. R. Civ.P. 12(f) specifies in relevant part:
(f) Motion to Strike. The court may strike from a pleading an insufficientdefense or any redundant, immaterial, impertinent, or scandalous matter.The court may act:(1) on its own; or(2) on motion made by a party either before responding to the pleadingor, if a response is not allowed, within 20 days after being served withthe pleading.
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A motion to strike under Rule 12(f) should be granted if it can be shown that no
evidence in support of the allegation would be admissible. See Pease & Curren
Refining v. Spectrolab, 744 F.Supp. 945, 947 (C.D.Cal.1990), abrogated on other
grounds by Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015 (9th Cir.1993);
LeDuc v. Kentucky Central Life Ins. Co., 814 F.Supp. 820, 830 (N.D.Cal.1992).
Motions in limine are proper for exclusion of inadmissible and irrelevant
evidence. Padillas v. Stork-Gamco, Inc. (3rd Cir. 1999) 186 F.3d 412, 417; United
States v. Cook (9th Cir. 1979) 608 F.2d 1175, 1186.
II. HEARSAY AND DOUBLE HEARSAY NOT SUBJECT TORULE 803 EXCLUSIONS ARE INADMISSIBLE ABSENTCIRCUMSTANTIAL GUARANTEES OF TRUSTWORTHINESS Fed.R.Evid. 801(c) defines hearsay as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Hearsay evidence is “not admissible except as provided
by these rules or by other rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.” Fed.R.Evid. 802. If the declarant is available, there
are 24 enumerated exceptions to hearsay under Fed.R.Evid. 803. In this instance the
hearsay statements reproduced below do not come within any of the enumerated
exceptions of rule 803.
The question of the admission of hearsay statements, whether in a criminal or
civil case, turns on due process considerations of fairness, reliability and
trustworthiness. U. S. v. Medico, C.A.2 (N.Y.) 1977, 557 F.2d 309, certiorari denied
98 S.Ct. 614, 434 U.S. 986, 54 L.Ed.2d 480. Constitutional Law 4670.
A [hearsay] statement not specifically covered by any of the foregoingexceptions but having equivalent circumstantial guarantees oftrustworthiness [is not excluded by the hearsay rule], if the courtdetermines that (A) the statement is offered as evidence of a materialfact; (B) the statement is more probative on the point for which it isoffered than any other evidence which the proponent can procurethrough reasonable efforts; and (C) the general purposes of these rules
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and the interests of justice will best be served by admission of thestatement into evidence . However, a statement may not be admittedunder this exception unless the proponent of it makes known to theadverse party sufficient in advance of the trial or hearing to provide theadverse party with a fair opportunity to prepare to meet it, his intentionto offer the statement and the particulars of it, including the name andaddress of the declarant.
Pursuant to Rule 803(24), the district court must make specific findingsregarding the requisite elements of the exception. Fong v. AmericanAirlines, 626 F.2d 759, 763 (9th Cir.1980).
Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc. 896 F.2d 1542,1552 (C.A.9 (Cal.),1990)
Plaintiffs respectfully move to strike and exclude the hearsay and double-hearsay
statements specified below, with respect to all aspects of this legal matter, including
Defendants’ pending motions for summary judgment and “Daubert” motions, and
including trial, on grounds that the specified statements are hearsay, are not subject
to any of the rule 803 exclusions, are false, and inherently lack reliability and
trustworthiness because they are false and permanently incapable of evidentiary
support.
III. ALL STATEMENTS THAT PLAINTIFF WAS TRYING TOLIGHT A WATER HEATER WITH THE SUBJECT TORCH AREINADMISSIBLE HEARSAY
The hearsay evidence subject to this motion is as follows, with the relevant
portions highlighted in bold text:
Randall T. Stephens1
39:2 A: Right. Right. We had heard he was lighting a water heateron the pilot light. We had also heard - these were - I think there wasthree different ones that I heard: That he was lighting a campfire and thathe was kicking around the cylinder, like, in the coals. There was, like -
1Please see Exhibit 1 attached to the Declaration of Alan J. Gould in support ofPlaintiffs’ concurrently filed motion to strike and exclude hearsay allegations thatPlaintiff Shalaby struck a campfire ring (ecf 105, motion to strike / in limine #1). Thedeposition transcript of Randall T. Stephens, also posted at ecf 93-33 in its entirety.MPA - PTF Strike/Limine #2 To Exclude Double Hearsay Statement Alleging Ptf Was Tryingto Light Water Heater With Torch -4- Case No. C 07cv2107 MMA
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he presumed empty. Now, which one, I don’t know. [Emphasis added.]
Plaintiffs move to strike from all of defendants’ pending motions for summary
judgment, “Daubert” motions, any motions and pleadings as defendants may
subsequently file in this action, and to exclude from trial, any and all references of any
kind, whether by way of statements, paraphrasing, recitals, insinuations, or
suggestions, that Mr. Shalaby used the subject torch (meaning either the torch
apparatus and/or the MAPP gas cylinder to which it was attached) to try to light a
water heater. Plaintiffs’ motion is specific to the testimony given by witnesses
Randall T. Stephens and/or Warren L. Ratliff on grounds that these witnesses have no
personal knowledge of the specified facts, were not present to witness the accident,
have not identified any declarant(s), and have themselves testified that there were
varying “stories” inconsistent with one-another. There clearly is no indicia of
reliability or trustworthiness to the hearsay statements that Mr. Shalaby allegedly tried
to light a water heater with the torch, and the allegations are simply false.
Dated: January 5, 2009 s/ Alan J. Gould, co-counsel for PlaintiffsAndrew Shalaby and Sonia Dunn-Ruiz
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Alan J. Gould SBN 68446Law Office of Gould and Hahn5801 Christie Ave, suite 385Emeryville, CA 94608Tel. 510-428-2229, fax [email protected]
Attorneys for PlaintiffsAndrew Shalaby and Sonia Dunn-Ruiz
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ANDREW SHALABY and SONIADUNN-RUIZ, Plaintiffs,
v.
NEWELL RUBBERMAID, INC., et al.
Defendants. And related cross-complaints.
Case Number C 07cv2107 MMA
MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFPLAINTIFFS’ MOTION TO STRIKEAND EXCLUDE ALL HEARSAYAND DOUBLE HEARSAYSTATEMENTS ALLEGINGPLAINTIFF STRUCK THE SUBJECTTORCH AGAINST A FIRE RING ORSIMILAR OBJECT
F.R.Civ.P. 12(f)(2); Motion In Limine #1Fed.R.Evid. 803, 403
ORAL ARGUMENT NOTREQUIRED
Date: Febraury 13, 2009Time: 2:30 p.m.Courtroom: 5Judge: Hon. Michael M. Anello
INTRODUCTION
Plaintiff Andrew W. Shalaby (hereinafter “Mr. Shalaby”) was severely injured
on April 21, 2006 when he attempted to use a torch assembly, consisting of aMPA - PTF Strike/Limine #1 To Exclude Double Hearsay Statement Alleging Plaintiff StruckTorch Against A Campfire Ring -1- Case No. C 07cv2107 MMA
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Bernzomatic-brand “”TS4000" torch handle and “MAPP” gas cylinder (hereinafter
“ torch” referencing the entire assembly) to re-light a campfire at Campland by the
Bay (hereinafter “Campland”), in San Diego, California. The torch exploded in Mr.
Shalaby’s right hand. Mr. Shalaby’s wife, Sonia Dunn-Ruiz (hereinafter “Ms. Dunn-
Ruiz”), had her back turned to Mr. Shalaby the moment of the explosion, and
immediately turned to witness her husband engulfed in a large ball of flame. Other
than these accounts, no one witnessed the moment of the explosion. However, two
Campland rangers, Warren L. Ratliff and Randy T. Stephens, arrived at the scene a
few minutes later. Mr. Ratliff and Mr. Stephens were deposed, and testified to hearsay
and double-hearsay statements as to three different stories told to them by unidentified
bystanders. Plaintiffs move to exclude the those hearsay and double-hearsay
statements for all purposes in this action, including presentation of the statements as
“evidence” in support of Defendants’ Motions for Summary Judgment and Daubert
motions presently set for hearing on February 13, 2009 (esp. ecf 45,46, 48-51, 57-66,
and 72-76), and simultaneously present their motion as MOTION IN LIMINE #1 for
exclusion of these matters at trial. The hearsay statements, quoted below, are
inadmissible for any purposes pursuant to Fed.R.Evid. 802, are not subject to any
exceptions under Fed.R.Evid. 803 or any other rules of evidence, and any probative
value they may have would be outweighed by the danger of unfair prejudice, and
could misleading the jury.
I. INADMISSIBLE EVIDENCE MAY BE STRICKEN UNDERFRCP 12(f)(2) AND EXCLUDED BY MOTION IN LIMINE
Fed. R. Civ.P. 12(f) specifies in relevant part:
(f) Motion to Strike. The court may strike from a pleading an insufficientdefense or any redundant, immaterial, impertinent, or scandalous matter.The court may act:(1) on its own; or(2) on motion made by a party either before responding to the pleadingor, if a response is not allowed, within 20 days after being served with
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the pleading.
A motion to strike under Rule 12(f) should be granted if it can be shown that no
evidence in support of the allegation would be admissible. See Pease & Curren
Refining v. Spectrolab, 744 F.Supp. 945, 947 (C.D.Cal.1990), abrogated on other
grounds by Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015 (9th Cir.1993);
LeDuc v. Kentucky Central Life Ins. Co., 814 F.Supp. 820, 830 (N.D.Cal.1992).
Motions in limine are proper for exclusion of inadmissible and irrelevant
evidence. Padillas v. Stork-Gamco, Inc. (3rd Cir. 1999) 186 F.3d 412, 417; United
States v. Cook (9th Cir. 1979) 608 F.2d 1175, 1186.
II. HEARSAY AND DOUBLE HEARSAY NOT SUBJECT TORULE 803 EXCLUSIONS ARE INADMISSIBLE ABSENTCIRCUMSTANTIAL GUARANTEES OF TRUSTWORTHINESS Fed.R.Evid. 801(c) defines hearsay as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Hearsay evidence is “not admissible except as provided
by these rules or by other rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.” Fed.R.Evid. 802. If the declarant is available, there
are 24 enumerated exceptions to hearsay under Fed.R.Evid. 803. In this instance the
hearsay statements reproduced below do not come within any of the enumerated
exceptions of rule 803.
The question of the admission of hearsay statements, whether in a criminal or
civil case, turns on due process considerations of fairness, reliability and
trustworthiness. U. S. v. Medico, C.A.2 (N.Y.) 1977, 557 F.2d 309, certiorari denied
98 S.Ct. 614, 434 U.S. 986, 54 L.Ed.2d 480. Constitutional Law 4670.
A [hearsay] statement not specifically covered by any of the foregoingexceptions but having equivalent circumstantial guarantees oftrustworthiness [is not excluded by the hearsay rule], if the courtdetermines that (A) the statement is offered as evidence of a materialfact; (B) the statement is more probative on the point for which it is
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offered than any other evidence which the proponent can procurethrough reasonable efforts; and (C) the general purposes of these rulesand the interests of justice will best be served by admission of thestatement into evidence . However, a statement may not be admittedunder this exception unless the proponent of it makes known to theadverse party sufficient in advance of the trial or hearing to provide theadverse party with a fair opportunity to prepare to meet it, his intentionto offer the statement and the particulars of it, including the name andaddress of the declarant.
Pursuant to Rule 803(24), the district court must make specific findingsregarding the requisite elements of the exception. Fong v. AmericanAirlines, 626 F.2d 759, 763 (9th Cir.1980).
Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc. 896 F.2d 1542,1552 (C.A.9 (Cal.),1990)
Plaintiffs respectfully move to strike and exclude the hearsay and double-hearsay
statements specified below, with respect to all aspects of this legal matter, including
Defendants’ pending motions for summary judgment and “Daubert” motions, and
including trial, on grounds that the specified statements are hearsay and double or
triple hearsay, are not subject to any of the rule 803 exclusions, are false, inherently
lack reliability and trustworthiness, are unfairly prejudicial, and could mislead the trier
of fact.
III. ALL STATEMENTS THAT A PURPORTED BYSTANDERALLEGEDLY HEARD OR SAW MR. SHALABY STRIKE THESUBJECT TORCH AGAINST A CAMPFIRE RING AREINADMISSIBLE HEARSAY
Mr. Shalaby first advises the Court and all parties that he DID NOT strike the
subject torch, cylinder, or any portion thereof, against any campfire ring or similar
object, prior to the explosion that caused his injuries, or at all prior to breach of the
cylinder. Please see Mr. Shalaby’s accompanying declaration.
The hearsay evidence subject to this motion is as follows, with the relevant
portions highlighted in bold text:
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Randall T. Stephens1
39:2 A: Right. Right. We had heard he was lighting a water heater onthe pilot light. We had also heard - these were - I think there was threedifferent ones that I heard: That he was lighting a campfire and that hewas kicking around the cylinder, like, in the coals. There was, like - hepresumed empty. Now, which one, I don’t know.
Q: I don’t want to guess which one was accurate.
A: I could not guess.
Q: I just want to make sure I have the full sum and substance of whatstories were told to you. So you were told that he might have been tryingto light a pilot light on a water heater?
A: Right.
Q: He might have been trying to light a campfire?
A: Right.
Q: And he might have been kicking a compressed gas cylinder, I guess,you’re talking about, in or around the campfire ring?
39:22 A: And there was one other: That he was hitting it on the ringand it burst. [Emphasis added.]
Q: But you don’t have any way, as you sit here today, to identify for uswho said which of those stories, do you?
40:2 A: No. No.
Warren L. Ratliff2
19:3 Q: Do you have any recollection, as you sit here today, of what anyof these people [bystanders] told you?
A: Well, I have different stories from each individual.
1Please see Exhibit 1 attached to the accompanying Declaration of Alan J.Gould, the deposition transcript of Randall T. Stephens, also posted at ecf 93-33 in itsentirety.
2Please see Exhibit 2 attached to the accompanying Declaration of Alan J.Gould, the deposition transcript of Warren L. Ratliff, also posted at ecf 93-31 in itsentirety.MPA - PTF Strike/Limine #1 To Exclude Double Hearsay Statement Alleging Plaintiff StruckTorch Against A Campfire Ring -5- Case No. C 07cv2107 MMA
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20:2 A: The one female in that group gave me a story of – that theguest in that site was trying to light the campfire with the torch andit would not light, and was banging the torch on the side of the firering. [Emphasis added.]
20:8 Q: Now, I don’t want to go further because I want to make sure Iunderstood the question. A lady from the campsite to the left of Mr.Shalaby’s campsite - Mr. Shalaby being the individual that was injured -to the left as you’re facing –
20:13 A: Facing his campsite
Q: His campsite. A woman in that group told you that she had observedhim trying to light the campfire unsuccessfully and banging the torch on- what did you say? On the campfire ring? [Misstating the testimonywhile misleading the witness]
A: On the campfire ring.
Plaintiffs move to strike from all of defendants’ pending motions for summary
judgment, “Daubert” motions, any motions and pleadings as defendants may
subsequently file in this action, and to exclude from trial, any and all references of any
kind, whether by way of statements, paraphrasing, recitals, insinuations, or
suggestions, that Mr. Shalaby struck the torch (meaning either the torch apparatus
and/or the MAPP gas cylinder to which it was attached) against any campfire ring or
similar object. Plaintiffs’ motion is specific to the testimony given by witnesses
Randall T. Stephens and Warren L. Ratliff on grounds that these witnesses have no
personal knowledge of the specified facts, were not present to witness the accident,
have not identified any declarant(s), and have themselves testified that there were
varying “stories” inconsistent with one-another. There clearly is no indicia of
reliability or trustworthiness to the hearsay statements that Mr. Shalaby allegedly
struck the torch against a fire ring, and the allegations are simply false (Shalaby
Declaration).
IV. THE RANGERS’ ON-SITE REPORTS MAKE NOREFERENCE TO THE HEARSAY STATEMENTS
Ranger Randy T. Stephens prepared an on-site report on the even of the
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accident which stated in relevant part:
[Mr. Shalaby] was lighting propane [sic] hand held torch when itexploded and burned skin to char & pink.
(Exhibit 3 to Declaration of Alan J. Gould.)
Mr. Warren L. Ratliff also prepared a report on the even of the accident which stated
in relevant part:
Guest Stated [to Ratliff] that he was trying to start campfire w/torch andthe torch just exploded.
(Exhibit 4 to Declaration of Alan J. Gould.)
Both reports were prepared only hours after the injury. Neither report referenced any
hearsay allegation that Mr. Shalaby had struck the torch against a fire ring. Both
reports correctly stated that Mr. Shalaby was using the torch to try to start a campfire,
and that the torch exploded [in his hand], as Mr. Shalaby had told them that night. Mr.
Shalaby attests that he tapped a piece of firewood lightly with the tip of the torch, and
the torch exploded in his hands. Mr. Shalaby’s declaration dated December 15, 2008
(ecf 93-5) does not merely consist of his own recollection, but includes indisputable
evidentiary support consisting of photographs and expert witness test results and
findings (ecf 93-3 and 93-4) proving Mr. Shalaby’s statements were accurate, and
entirely disproving the double-hearsay of the unidentified bystanders alleging he
struck a campfire ring.3
3The distinction of tapping a piece of firewood vs. striking a concrete fire ringis important because striking a piece of firewood is incapable of apply enough forceto cause a safety “fracture groove” on the torch handle to fracture unless there is aproduct defect, whereas striking a concrete fire ring could cause a break in the fracturegroove. However, in either scenario, the torch’s fracture groove would fracturebefore the cylinder ruptures, absent a defect in the brazed neck of the cylinder. Thesematters are discussed on Plaintiffs’ pending motion for leave to supplement theirMPA - PTF Strike/Limine #1 To Exclude Double Hearsay Statement Alleging Plaintiff StruckTorch Against A Campfire Ring -7- Case No. C 07cv2107 MMA
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V. THE HEARSAY AND DOUBLE-HEARSAY EVIDENCESHOULD BE EXCLUDED TO ASSURE CORRECT FACTUALDETERMINATIONS, AVOID UNFAIR PREJUDICE, ANDAVOID MISLEADING THE JURY
Relevant evidence is generally admissible (F.R.Evid. 402) unless its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. (F.R.Evid. 403.) -
This rule [403] is designed principally to promote policies of assuringcorrect factual determinations in individual cases and actual andperceived fairness in judicial process as a whole. U. S. v. Robinson,C.A.2 (N.Y.) 1976, 544 F.2d 611, on rehearing 560 F.2d 507, certioraridenied 98 S.Ct. 1451, 435 U.S. 905, 55 L.Ed.2d 496.
The double-hearsay evidence specified above is irrelevant and has no probative value
because it is false, and does not even have the backing of a real “declarant.” The
allegation that some “female in the group” told Ranger Ratliff that she thought that
Mr. Shalaby may have struck a campfire ring, without having an actual “declarant”
available to examine or cross-examine, does nothing more than promote false,
incorrect, and prejudicial factual determinations.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that any and all
reference to the above hearsay statements that Mr. Shalaby struck a campfire ring be
stricken from any and all present pending and future pleadings, that all defense expert
findings and conclusions based on the above-described hearsay statements be stricken,
and that the hearsay statements be excluded entirely from trial.
Dated: January 5, 2009 s/ Alan J. Gould, co-counsel for PlaintiffsAndrew Shalaby and Sonia Dunn-Ruiz
expert’s discovery responses, ecf 93-86, specifically ecf 93-3 and 93-4.
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Alan J. Gould SBN 68446Law Office of Gould and Hahn5801 Christie Ave, suite 385Emeryville, CA 94608Tel. 510-428-2229, fax [email protected]
Attorneys (co-counsel) for PlaintiffsAndrew Shalaby and Sonia Dunn-Ruiz
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ANDREW SHALABY and SONIADUNN-RUIZ,
Plaintiffs,
vs.
NEWELL RUBBERMAID, INC.,IRWIN INDUSTRIAL TOOLCOMPANY, INC., a wholly owneds u b s i d i a r y o f N E W E L LR U B B E R M A I D , I N C . ;BERNZOMATIC, an UnincorportedDivision of IRWIN INDUSTRIALTOOL COMPANY; THE HOMEDEPOT, INC.; and DOES 2 through100, inclusive
Defendants. And related cross-complaints.
Case Number Case No. C 07cv2107MMA
DECLARATION OF DR. ROBERTN. ANDERSON IN SUPPORT OFPLAINTIFFS’ MOTION FORLEAVE TO SUPPLEMENTEXPERT DISCOVERY AND INSUPPORT OF OPPOSITION TODEFENDANTS’ MOTIONS FORSUMMARY JUDGMENT ANDRELATED MOTIONS
Date: Febraury 6, 2009Time: 2:30 p.m.Courtroom: 5Judge: Hon. Michael M. Anello
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I, Robert N. Anderson, declare as follows:
1. I am an expert witness retained by Plaintiff Andrew W. Shalaby and
Sonia Shalaby (hereinafter “Plaintiffs”) in this action.
2. I have been retained to examine all available evidence and testimony and
provide an expert opinion as to the cause of the breach of a Bernzomatic-brand MAPP
gas cylinder and torch, which caused Plaintiff’s injuries on April 21, 2006. A photo
of the actual MAPP gas cylinder and torch causing Plaintiff’s injuries, taken before
the accident, was provided to me and is shown in fig. 1 below.
fig. 1
fig. 2
3. Based on the preliminary information provided, there was reason to
suspect that the brazed “bushing” of the subject cylinder had failed. The “bushing”
as referenced herein is the threaded assembly welded on top of the cylinder, as shown
in fig. 2 above, at the area of insertion of the card. The area of insertion of the card
shows the area of defect on an exemplar purchased in September 2008.
4. On or about September 24, 2008 I was contacted directly by Plaintiff
Andrew W. Shalaby and asked whether or not his recent recollection of certain events
could be accurate and consistent with the physical description of the damage to theRNA DECL - MTN SUPPLEMENT DISCOVERY Case No. C 07cv2107 MMA
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Bernzomatic MAPP gas cylinder which had caused his injuries on April 21, 2006.
Mr. Shalaby also revealed to me that his right index finger had not been substantially
injured, indicating that his earlier belief that he may have been holding the cylinder
by the torch handle and depressing the button at the time of the explosion could not
have been correct. I observed this to be the case, because his index finger as shown
in fig. 3 below would have rested directly over the area of the breach, fig. 4 (from an
exemplar), and would have been badly injured..
Fig. 4 (exemplar)
fig. 3
Mr. Shalaby brought to my attention the existence of a safety “fracture groove”
located on the Bernzomatic TS4000 torch handles such as the one Mr. Shalaby was
using at the time of his injuries. Mr. Shalaby provided me with a package insert
accompanying his purchase of a TS4000 torch and cylinder kit a few days earlier. The
insert explains the fracture groove and its intended purpose, as shown in fig. 5 below.
fig. 5
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5. To confirm Mr. Shalaby’s recollection of events, and further investigate
based on the above observations, on September 26, 2008 I performed stress tests on
three TS4000 torch handles, and on the “bushing” of a new Bernzomatic MAPP gas
cylinder. The torch handles were tested on a machine measuring the amount of force
required to fracture the fracture grooves, as shown in figure 6 below:
fig. 6 fig. 7
The fracture grooves of the two torch handles fractured at 22, 23, and a third torch
handle utilizing a reduced-thickness fracture area (a re-design of approximately June
2005) fractured at 26 foot-pounds (fig. 7, re-design shown as “Exp. 1").
6. Next, we tested the amount of force required to cause a fracture or
separation at the bushing by applying force at the torch handle, below the fracture line,
as shown in fig. 8.
fig. 8 fig. 9
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2 on page 2). A force of 152 pounds was applied directly to the torch handle, below
the fracture groove (fig. 8). The cylinder bushing (valve) began to bend at 15 foot-
pounds of force, and bent as shown in fig. 9, but did not breach or separate.
7. The above tests revealed the following:
(a) The observations of figures 3 and 4 above indicate Mr. Shalaby could
not have held the cylinder / torch assembly by the torch handle at the
time of explosion because his index finger did not sustain any significant
injuries.
(b) Consistent with the defendants’ experts Dr. Thomas Eager’s findings, as
well as Mr. Shalaby’s recollection, a force was applied to the tip of the
torch handle, at the point of greatest leverage.
(c) Consistent with the fact that the bushing area was the area of breach as
shown in the exemplars in fig. 10 and 11 below (taken from the “Gertz”
and “Vanderlinde” cases posted at www.bernzomaticinjuries.com ,
located under the “lawsuits” tab), it would have been impossible for Mr.
Shalaby to have been holding the assembly by the torch handle itself. If
the assembly were held by the torch handle, any force applied to the
torch tip would not be able to transfer to the bushing area, but would
cease at the point of origin, the torch handle itself. This evidences
establishes that Mr. Shalaby was holding the assembly by the yellow
MAPP cylinder, consistent with his September 2008 recollection.
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fig. 10 fig. 11
(d) Consistent with the fact that the subject cylinder was not bent at the
“dome” in the manner shown in fig. 9 (as opposed to at the “separation”
bends shown in figs 10 and 11 above), the force applied to the tip of the
torch handle Mr. Shalaby was using at the time of his injury was well
below 15 foot-pounds (absence of bending means force was below 15
foot-pounds).
(f) Consistent with Mr. Shalaby’s recollection, the point of impact was at
very top of the torch, at the tip, above the fracture groove. It would
have been impossible for the point of impact to have been below the
fracture groove, because the direction of force was opposite the direction
of the angle of the silver torch tube, exactly as shown in the exemplars,
figs. 10 & 11 above, and any force sufficient to breach the cylinder
would have broken the red plastic trigger button and left evidence of
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impact on the torch handle. As attested-to by the two rangers examining
the torch handle and cylinder, there was no damage to the button or
anywhere on the torch handle. In addition, the amount of force required
to breach the cylinder below the fracture groove would have been well
in excess of the amount of force someone with Mr. Shalaby’s size and
build could have exerted (well in excess of 152 pounds of direct force).
8. The defendants have expressed a theory, based on an alleged statement
Mr. Shalaby made to a paramedic at the time of injury, that Mr. Shalaby had kicked
the cylinder assembly into a campfire, and it exploded. I was unaware that photos of
the actual injuries had existed prior to December 2008. Mr. Shalaby advises me that
the hospital in San Diego had recently found photographs of his injuries, and he
received the photos on or about November 6, 2008. I have examined the photos
shown in figures 12-17 below.
fig. 12 fig. 13 fig. 14 fig. 15
fig. 16
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fig. 17 Fig. 18
9. Figures 12-16, and the overall magnitude of the injuries, indicate Mr.
Shalaby was at the epicenter of the “ball of fire” which engulfed him from head to
tow. Fig. 17 reveals that the inside of his right hand was not burned because it was
protected from the flames by the cylinder, with exception of injury to the exact portion
of his hand which was exposed (fig. 18). Figures 17 and 18 in particular indicate that
the cylinder was in Mr. Shalaby’s hand at the moment of breach, while Defense expert
Thomas Eager accurately explained that the MAPP gas cylinder would only breach
when placed in a fire if a pressure relief valve located on top of the cylinder would
have failed, and the injury would have been localized from only one direction, not
circumferentially from head to toe. The recently discovered photos therefore disprove
the defendants’ theory that the cylinder had been kicked, on grounds of impossibility,
consistent with Defense Expert Thomas Eager’s opinion on this issue.1
10. It is my conclusion that Mr. Shalaby’s recollection of late September
1I also note that the cylinder and torch did not have any ash, soot, or evidenceof having been kicked into the fire, per the relevant deposition witnesses, furtherdisproving Defendants’ theory that the cylinder had been kicked into a fire.
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2008, that he had tapped or nudged a piece of firewood at the moment of the
explosion, while holding the cylinder substantially as shown in fig. 19 below, is
wholly consistent with the evidence.
fig. 19
This conclusion is fully supported by the findings of my September 26, 2008 tests,
consistent with my earlier findings disclosed prior to the close of expert discovery,
and consistent with the burn injury patterns noted on the photos Mr. Shalaby received
from the hospital in November 2008, which I learned of and examined for the first
time in December 2008. These injuries could not have occurred absent a defective
cylinder or fracture groove design. The area where the horizontal surface of the
cylinder meets the vertical surface of the narrow neck (see fig. 2 above) should not
separate at any force less than that which is required to fracture the safety fracture
groove. The fracture groove separating at 26 foot-pounds establishes the minimum
amount of force the cylinder must withstand so that the fracture groove may perform
its intended function. The minimum force the cylinder bushing must withstand is
therefore “greater than” 26 foot-pounds. The absence of a bend at the dome area (see
fig. 9) establishes the force could not have exceeded 15 foot-pounds. In this instance
the separation occurred at an estimated 3 foot-pounds or less. The absence of any
evidence impact to the torch handle, and the fact that the fracture groove was not
fractured, further prove with engineering certainty Mr. Shalaby’s injuries were caused
by a defective cylinder.
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September 29, 2008
Mark D. Epstein
Alborg, Veiluva & Epstein LLP
200 Pringle Avenue, Suite 410
Walnut Creek, CA 94596-7380
Re: Shalaby v. Irwin, et al.
Dear Mr. Epstein:
On September 26, 2008, I tested the Bernzomatic TS4000 torches and one cylinder.
Bernzomatic Torch literature states that “Fracture Groove enhances safety in case torch is
dropped.” Old design torches had such fracture grooves. However, the newer torches on
the market do not have this Fracture Groove feature. The dimensions of the brass in the
newer, un-grooved TS4000 torches are reduced at the very point where the fractures have
occurred.
The test on 9/26/08 was to determine the force required to fracture the grooved and the
new, un-grooved torch. Three torches were tested. The first torch had no grooves and
fractured at 26 ft. lbs. Tests 2 and 3 were on the grooved torches and those fractured at
22 ft. lbs. and 23 ft. lbs., respectively.
The strength of the valve in a cylinder valve also was tested in a new MAPP gas cylinder
(W11G149W) that had been purchased just a week before the test. The top dome of that
cylinder, under test, started to deform at 15 ft. lbs. and continued to deform to 25 ft. lbs.
without a breach that would cause venting. I believe the above tests proved two things:
First, it shows that “abuse” of the torch, such as dropping it or striking it on a hard surface
or pushing against a resistance, is more likely to cause a fracture in the TS4000 torch
itself, rather than to the area of the valve in the cylinder.
Second, it shows that unless there are defects present in the cylinder, “abuse” will merely
cause deformation of the cylinder and will not cause breach of the cylinder in the area of
the valve.
The witnesses at the time of the accident did not report the Shalaby cylinder top dome to
have been deformed, indicating that less than 15 ft. lbs. force had been applied.
These defects in the cylinder, that cause the Shalaby cylinder to vent at less force that 15
ft lbs, may be the result of manufacturing problems or the result of aging and corrosion.
It is likely that Mr. Shalaby was holding the cylinder itself at the time of his accident and
not the TS4000, based on the fact of the lack of burns to his little finger of his right hand.
Hence, any force to the cylinder valve most likely was transmitted by the torch tip. Had an
“abusive” force been applied to the tip, the brass would have fractured, and not the
cylinder.
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The argument that Mr. Shalaby “abused” the MAPP gas torch and cylinder is false. The
TS4000 would fail if forces were applied to it, and a non-defective cylinder should not
vent. The conclusion is that the cylinder that Mr. Shalaby was using was defective.
Please call me if you have any questions.
Sincerely,
Robert N. Anderson, Ph.D., P.E.
Case 3:07-cv-02107-MMA-BLM Document 93-4 Filed 12/16/2008 Page 2 of 2
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Alan J. Gould SBN 68446Law Office of Gould and Hahn5801 Christie Ave, suite 385Emeryville, CA 94608Tel. 510-428-2229, fax [email protected]
Attorneys (co-counsel) for PlaintiffsAndrew Shalaby and Sonia Dunn-Ruiz
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ANDREW SHALABY and SONIADUNN-RUIZ,
Plaintiffs,
vs.
NEWELL RUBBERMAID, INC.,IRWIN INDUSTRIAL TOOLCOMPANY, INC., a wholly owneds u b s i d i a r y o f N E W E L LR U B B E R M A I D , I N C . ;BERNZOMATIC, an UnincorportedDivision of IRWIN INDUSTRIALTOOL COMPANY; THE HOMEDEPOT, INC.; and DOES 2 through100, inclusive
Defendants. And related cross-complaints.
Case Number Case No. C 07cv2107MMA
DECLARATION OF ANDREW W.SHALABY IN SUPPORT OFPLAINTIFFS’ MOTION FORLEAVE TO SUPPLEMENTEXPERT DISCOVERY AND INSUPPORT OF OPPOSITION TODEFENDANTS’ MOTIONS FORSUMMARY JUDGMENT ANDRELATED MOTIONS
Date: Febraury 6, 2009Time: 2:30 p.m.Courtroom: 5Judge: Hon. Michael M. Anello
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I, Andrew W. Shalaby, declare as follows:
1. I am a plaintiff in this action because on April 21, 2006 I was severely
injured by a Bernzomatic MAPP gas cylinder and “TS4000" torch handle assembly
while trying to light a campfire at “Campland on the Bay” in San Diego, California.
The details are as follows: At approximately 10:00 p.m. on April 21, 2006 I picked up
the Bernzomatic MAPP gas cylinder and torch assembly in my right hand, and with
my left hand, I picked up some firewood. I walked over to the campfire ring area, and
placed the firewood on top of some older embers. I was holding the torch assembly
by the cylinder itself, and not by the torch handle. I gently tapped the tip of the torch
against a piece of firewood to move it into position on top of the log pile, as
demonstrated on exhibit 17 attached hereto. The piece of firewood was perhaps 1 foot
in length. I held the cylinder and torch assembly as shown in 18 attached hereto.
Immediately upon tapping the firewood, the cylinder breached directly below the
threads upon which the torch was mounted, at the same location of the breaches
shown in exhibits 9 through 14 attached hereto (consisting of exemplars from other
lawsuits as specified below). A very powerful flame, accompanied by a very loud
hissing sound, immediately erupted. I turned my face to the right, and I believe there
was an explosion at that instance, which burned the left half of my face, as shown in
exhibit 23 attached hereto. The cylinder was still in my hand after it had exploded.
For a moment, I was not aware what had happened. Upon observing the cylinder in
my hand, everything still aflame, I realized that the cylinder had exploded. I threw it
out of my hand, and the flames went out.
2. I was deposed in this action on September 24-25, 2007, and on October
16, 2007. At times, prior to my depositions, I thought I had merely held the torch
assembly, pressed the trigger, and it exploded, as described on handwritten reports
prepared by the rangers the day following the injury (exhibits AG-3 and AG-5 to Mr.
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Gould’s declaration). However, during the three weeks I spent in the hospital, just
about every time I started to drift to sleep I would “see” the tip of the torch making
contact with a piece of firewood, “see” and “feel” the explosion and flames, and I
would “jolt” wide awake and shaking, often breaking into tears. I struggled to push
these thoughts out of my mind, but was unsuccessful for many months. Even now,
as I recall the thoughts, I experience tremendous anxiety, shaking, and disorientation.
While in the hospital I was also extremely medicated and had a severely compromised
perception, including hallucinations which I believe may have been documented in the
hospital records. At some point in the few months that followed my injury I thought
I had told my wife and brother that I may have tapped the tip of the torch against a
piece of firewood, and told them of other “recollections” I had while in the hospital.
However, my “memory” was entirely contrary to the “physical evidence” brought to
my attention at that time. First, one of the paramedics testified early on that I told him
I had kicked the torch assembly into the campfire (exhibit AG-6 to Alan Gould
declaration). Then, there were reports kept by the rangers and EMT personnel coming
to my aid, and their stories of what I or other persons had told them were entirely
contrary to my “recollection” (AG-3 and AG-5). Then, and most compelling, was the
fact that I had an actual “recollection” that the inside of my hands were injured, and
there was no evidence of injury or scarring at all on the inside of either of my hands
(exhibit 16, hand after recovery) . Nor was there any mention of injury to the inside
of my hands in any hospital records. This piece of evidence in particular convinced
me that my “recollection” was not accurate, and that the visual “flashes” I saw in the
hospital were likely hallucinations, similar to others I had experienced. I therefore
believed the facts which made most sense, those which were on the hand-written
report of one of the rangers (AG-3 and AG-5), which were consistent with
documentation in the hospital intake records. Those facts, which those individuals
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indicated had come from me at the time of the accident, were that I was simply trying
to light a campfire, and the torch exploded in my hand. However, I thought my hand
was on the trigger of the torch, which I learned was not possible in September 2008,
as I will explain below.
3. On September 10, 2008 defense expert Dr. Thomas A. Eager was
deposed. I reviewed his deposition transcript a few days later. I found many of Dr.
Eager’s opinions and conclusions to be consistent with my “visual” memories in the
hospital. In particular, Dr. Eager testified that the breach of the cylinder could not
have occurred absent application of some measure of force to the tip of the torch. I
was so moved by this conclusion that on September 20, 2008 I purchased a
Bernzomatic Mapp gas torch and cylinder kit from Home Depot to try to visually
recreate the incident. I attached the torch to the cylinder, held the torch in my right
hand as shown in exhibit 16 hereto, and it dawned on me that I could not have
possibly been holding the torch by the handle and pressing the button. This was
because my index finger was not injured. Had I held the torch by the handle, my
index would have been directly over the area of the breach, and would have sustained
severe injury.
4. Approximately on September 22, 2008 I discussed my “findings” with
my counsels and asked if I could speak with my expert witness, Dr. Robert Anderson.
My counsels adamantly refused to allow me to speak with Dr. Anderson, but I called
him directly anyway on September 22, 2008. I explained my revelations, and Dr.
Anderson and I realized that it was also physically impossible for the cylinder to have
breached without application of force, because the torch tip was “bent 5 to 10 degrees”
in the direction exactly opposite the direction of the angle bend on the silver steel
tube, as shown in exhibit 9 hereto. In addition, force could not reach the area of the
split (exhibits 10-14 hereto) unless I was holding the assembly by the yellow cylinder
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itself. This is because any application of force would only travel to “the point of
origin,” and if my had was the “point of origin” while on the torch handle, force could
not travel to the fracture area below my hand (exhibit 17 aids in the explanation). I
then discussed these findings with my wife, and she told me that she saw my hand
holding the “yellow cylinder” after the cylinder had exploded, before I threw it out of
my hand. It was then established that I held the cylinder, not the torch handle,
contrary to my earlier belief. Upon this realization I brought to Dr. Anderson’s
attention that a “fracture groove” existed on the torch handle, and provided him with
the package insert from the torch kit I purchased September 20, 2008 (exhibit 4
hereto). Our focus turned to the fracture groove, and Dr. Anderson scheduled stress
tests for the groove and cylinder to take place on September 26, 2008.
5. On September 25, 2008 I called Irwin Industries and asked if they had
any literature on the fracture groove, in preparation for the stress test planned the
following day. They sent me a document, via fax, which disclosed:
Fracture Groove: A designed in failure point in the torch, so that when the torch
& cylinder are dropped, the fracture groove will fail prior to the cylinder center
bushing failing. If the center bushing fails, then an extremely large 8 to 10 foot
flame will erupt from the cylinder.
The ominous disclosure that “if the center bushing fails, then an extremely large 8 to
10 foot flame will erupt from the cylinder” reinforced my confidence that my memory
was likely accurate. That was exactly what had happened on April 21, 2006, the
center bushing “failed” (for lack of a more descriptive word).
6. On September 26, 2008 I accompanied Dr. Anderson in Hayward,
California as he performed stress tests on the torched tip and cylinder. The test results
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further established that my memory was accurate. Three torch handles breached at
the “fracture groove,” at 22, 23, and 26 foot-pounds of force, and the computer
generated a printout with a graph (exhibits 5 & 6 hereto). The cylinder was then
tested as shown in exhibits 7 and 8. The test established that a cylinder containing no
defects would not breach at the neck even under force in excess of 152 pounds, and
would merely “bend” as shown in exhibit 8 once a measured force of 15 foot-pounds
was reached. These tests proved not only that my memory was accurate, but that the
force applied to the tip of my torch was certain to have been below 15 foot-pounds,
because the cylinder did not bend as shown in exhibit 8 hereto. The tests also proved
that the force must be applied to the torch tip itself in order to fracture the cylinder at
the location where mine fractured, and that no matter how much force one applies to
the torch tip, the cylinder would not breach because the fracture groove would fracture
first. This established that the cylinder which exploded in my hand breached at a
measure of force far lower than required to fracture the fracture groove.
7. Somewhere during the above time frame, between September 22, 2008
and September 27, 2008 I believe, I underwent hypnosis for the sole purpose of trying
to defuse the typical anxiety and physical manifestations I always experienced when
I attempted to revisit the seconds before the explosion to try to determine what
happened. The endeavor was successful for a short duration of time. I was able to
recall that I was tapping lightly a piece of firewood on top of the log pile to cause it
to move, and the explosion happened exactly at the moment of contact between the
tip of the torch and the firewood. The amount of force applied was just enough to try
to cause the piece of firewood to move perhaps a couple of inches, which I would
describe as the same amount of force one uses to knock on someone’s front door.
8. My attorneys did not take well to Dr. Anderson’s testing or to my
recollection of events, and refused to provide Dr. Anderson’s supplemental report to
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the defendants. I also prepared a detailed declaration to supplement my discovery
responses and asked them to serve it. They refused, and told me that if I insisted on
presentation of Dr. Anderson’s report or my declaration to the defendants, they would
withdraw as my counsels. (Most or all of these interactions are documented by
emails.) The disagreement with my counsels proved to be more stressful and
confusing than I could handle, so I began seeing a (new) psychologist at that time
(around October 1, 2008 onward). I consulted with my psychologist over this
disagreement, and asked him to speak with Attorney Mike Veiluva (my counsel)
directly, which he agreed to do. (Mike Veiluva gave me the referral for the
psychologist.) However, even after all these efforts, my attorneys still refused to
provide my disclosures and refused to provide the supplemental test report of Dr.
Anderson to the defendants. Finally, I advised my counsels I intended to serve the
disclosures personally, then I served my declaration to the defendants directly by
email sometime in October or November. In response, my counsels filed a motion to
withdraw, which is now set for January 16, 2009. I have asked that the motion be
heard in camera because there are other personal and privileged matters which I am
not comfortable disclosing to the defendants at this time, and which do not involved
the defendants.
9. Despite the fact that Dr. Anderson’s testing supported my “visual”
hospital recollections, I remained extremely upset and disturbed over the fact that I
remembered suffering injuries to the inside of my hands, and there was no evidence
of those injuries having ever occurred. My hands had no trace of injury on the inside.
The hospital records made no mention of any injuries to the inside of my hands. My
wife and my brother both told me that they never saw any injuries to the inside of my
hands. Worse yet, my wife believed my perception was severely compromised
because I had this recollection of an injury which at that time she was certain had
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never existed (to the inside of my hands). I would look at my hands very closely for
scars, and there were none. This vivid “visual” recollection was so disturbing that I
called the hospital in San Diego and asked if they had any photographs of my injuries.
They told me that they had already sent my entire file to me long ago, but would
check. They checked, and as luck would have it, they found detailed photos of my
injuries. They sent me the photos, which I received November 6, 2008. The photos
gave me great comfort and confidence in my recollection because they showed that
the inside of both my hands were injured, exactly as I had recalled (exhibits 19 and
22 hereto).
10. I learned the reason my brother and my wife never saw the injuries to the
inside of my hands. Both my hands were bandaged for a long period of time after I
was admitted to the hospital. Somehow those portions of my hands recovered without
scars or marks of any kind very early on. The hospital simply forgot to document the
injuries to the inside of both my hands.
11. The photo of the injury to the inside of my right hand in particular also
established that my recollection that I held the torch assembly by the cylinder at the
time of explosion was completely accurate. Exhibit 18 hereto shows my hand exactly
as positioned on the cylinder at the time of the injury. Exhibit 19 shows that the only
portion of the inside of my right hand which sustained injury was the exact and
limited area which was not protected by the cylinder, shown in exhibit 18. This last
piece of evidence causes me to be able to say, with confidence, that I know based on
personal knowledge what had occurred at the time of the accident. I was holding the
torch and cylinder assembly by the cylinder, tapping lightly on a piece of firewood to
cause it to move a couple of inches, and that minimal amount of force was sufficient
to cause the neck of the cylinder to separate at the weld area shown in exhibits 9
through 14. At first the separation was only enough to cause the pressurized gas to
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escape with a very loud “hiss” and very intense flame. As soon as this happened, I
reflexively turned my head to the right, and the cylinder exploded. The force of the
explosion caused the edges of the metal at the area of separation to bend outward, as
described by Rangers Stevens and Ratliff on their depositions. I did not realize what
had happened immediately, but at some point I became aware of the fact that the
cylinder exploded, saw that it was still in my hand, then threw it. The cylinder landed
in the dirt, away from the fire pit, where the one ranger found it and retrieved it.
There were no burn marks, ashes, or soot on the cylinder or torch handle, because it
was never “in the fire pit” as alleged by the defendants, it was in my hand. There was
no damage of any kind to the torch handle, tip, or MAPP cylinder, other than the
opening of the metal itself at the point of breach, because the only force applied was
the very minimal force of the tip against a piece of firewood, which was not even
enough to leave a mark of any kind, and which most certainly was nowhere near
enough to fracture the fracture groove. I therefore attest, with absolute and
unequivocal certainty, that it is impossible for the defendants to find any non-hearsay
evidence which would contradict any of the material and core facts set forth above.
12. Based on all of the information set forth above, and based on my personal
attendance and observation of the tests performed September 26, 2008 by Dr.
Anderson and his laboratory, I have personal knowledge of the facts and findings set
forth on Dr. Anderson’s supplemental report, exhibit 1 attached hereto. All of the
information contained on that report is true, correct, and accurate based on my
personal observations of the testing.
CERTIFICATION OF EXHIBITS
13. Exhibit 1 attached hereto is a true and correct copy of Dr. Anderson’s
report dated September 29, 2008 referencing the results of his September 26, 2008
testing. The contents of that report are true, correct, and accurate, based on my
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personal knowledge and observations of the testing.
14. Exhibit 2 attached hereto is a true and correct copy of a photo of the
actual torch cylinder and torch handle which I used on April 21, 2006, and which
caused my injuries.
15. Exhibit 3 attached hereto is a true and correct copy a Bernzomatic-brand
MAPP gas cylinder I purchased from Home Depot in El Cerrito on or about
September 20, 2008.
16. Exhibit 4 attached hereto is a true and correct copy a package insert from
a Bernzomatic MAPP gas torch handle and cylinder kit I purchased from Home Depot
in El Cerrito on or about September 20, 2008.
17. Exhibit 5 attached hereto is a true and correct copy a photograph taken
on September 26, 2008 depicting the test machine and test procedure used to
determine the amount of force required to break the Bernzomatic “TS4000" torch
(also referenced as “torch handle” above). The fracture grooves of the torches with
the “fracture groove” design as shown in my torch, exhibit 1, fractured at 22 and 23
foot-pounds respectively. The re-designed torch, which had a thin metal area at the
location where the previous fracture grooves were located, fractured at 26 foot-pounds
of force. The computer maintained a record and generated a print-out graph of the
testing.
18. Exhibit 6 attached hereto is a true and correct copy the actual torches
tested on September 26, 2008 at the tests specified above.
19. Exhibit 7 attached hereto is a true and correct copy of a photograph taken
September 26, 2008 depicting the test machine and test procedure used to determine
the amount of force required to either bend or fracture the Bernzomatic MAPP gas
cylinder at the location of the “bushing” (narrow neck area where the business card
is shown inserted in exhibit 3). I observed the machine apply approximately 152
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pounds of direct force to the location shown, and the testing concluded with force
somewhere in that range (152 pounds or greater), when it was determined that the
cylinder would not separate at the bushing with any force less than that which was
required to fracture the fracture grooves (i.e. would not fracture at a force less than 27
foot-pounds). The cylinder merely bent, as shown in exhibit 8.
20. Exhibit 8 attached hereto is a true and correct copy of a photograph taken
September 26, 2008 of the cylinder shown in the test machine of exhibit 7 above. The
cylinder bushing area began to bend at 15 foot-pounds of force, as measured by the
machine.
21. Exhibit 9 attached hereto is a true and correct copy of a Bernzomatic
MAPP gas torch handle and cylinder which I am informed had caused the injuries of
the plaintiff in another case, the “Geltzer” case which is listed under the “lawsuits” tab
of the website at www.bernzomaticinjuries.com , the complaint of which can be
accessed by clicking on the “Geltzer” link on that page. That photo shows very nearly
the damage and separation of the torch cylinder and handle assembly which caused
my injuries. Both torch handles were “bent” in the same direction shown, both
separated at the same location shown, and both showed no signs of abuse or impact
anywhere on the torch or on the cylinder. The only difference is that my cylinder
separated wider and contained a larger gap at the area of the breach, and the metal at
the edges of the breach was curved outward from the force of the explosion and gas
escaping the cylinder, as described by the rangers in their deposition transcripts
accompanying Mr. Gould’s declaration.
22. Exhibit 10 attached hereto is a close-up photo of the area of separation
of the cylinder in the Geltzer case (exhibit 9).
23. Exhibit 11 attached hereto is a true and correct copy of a Bernzomatic
MAPP gas torch handle and cylinder which I am informed had caused the injuries of
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the plaintiff in another case, the “Vanderlinde” case which is listed under the
“lawsuits” tab of the website at www.bernzomaticinjuries.com , the complaint of
which can be accessed by clicking on the “vanderlinde” link on that page.
24. Exhibits 12, 13, and 14 are true and correct copies of MAPP gas
cylinders which I have been told had caused injuries to plaintiffs in other cases, those
injuries all occurring between February 2004 and some time around 2006. Those
cylinders were associated with some of the cases listed under the “lawsuits” tab of
www.bernzomaticinjuries.com .
25. Exhibit 15 attached hereto is a true and correct copy a photograph of
another torch handle from the “Barrett” case listed under the “lawsuits” tab at
www.bernzomaticinjuries.com . As is the case in all the cases listed on the website,
the fracture groove of the torch did not fracture, and there was no evidence of impact
or abuse on the torch, once again evidencing that the amount of force required to
breach the “bushing” area of the cylinder was well below the amount of force required
to fracture the fracture groove of the torch.
26. Exhibit 16 attached hereto is a true and correct copy of a photograph of
my hand holding the Bernzomatic TS4000 torch as I typically held it while using the
product.
27. Exhibit 17 attached hereto is a true and correct copy of a photo of myself
holding the Berzomatic torch/cylinder assembly the way I recall having held it at the
time of injury. I was gently tapping a piece of firewood as shown in the photo, and
as described above.
28. Exhibit 18 attached hereto is a true and correct copy of my hand holding
the Bernzomatic MAPP gas cylinder exactly as I recall having held it at the moment
of the explosion causing my injuries.
29. Exhibit 19 attached hereto is a true and correct copy the injury to the
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inside of my right hand, sustained from the explosion on 4/21/06. Only the portion
of my hand which was not in contact with the cylinder sustained an injury (see exhibit
18).
30. Exhibit 20 attached hereto is a true and correct copy of a photo of my
injured legs taken approximately April 25, 2006. The skin had been blown off the
areas shown. Those areas received skin grafts in May 2006.
31. Exhibit 21 attached hereto is a true and correct copy of the back side of
my left hand, showing that injury, taken about April 25, 2006.
32. Exhibit 22 attached hereto is a true and correct copy of the inside of my
left hand, showing that injury, taken about April 25, 2006.
33. Exhibit 23 attached hereto is a true and correct copy of the injury to my
face, taken about April 25, 2006.
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and within my personal knowledge, and if sworn as
a witness I can and will testify competently thereto.
Executed December 15, 2008 in El
Cerrito, CA Andrew W. Shalaby
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September 29, 2008
Mark D. Epstein
Alborg, Veiluva & Epstein LLP
200 Pringle Avenue, Suite 410
Walnut Creek, CA 94596-7380
Re: Shalaby v. Irwin, et al.
Dear Mr. Epstein:
On September 26, 2008, I tested the Bernzomatic TS4000 torches and one cylinder.
Bernzomatic Torch literature states that “Fracture Groove enhances safety in case torch is
dropped.” Old design torches had such fracture grooves. However, the newer torches on
the market do not have this Fracture Groove feature. The dimensions of the brass in the
newer, un-grooved TS4000 torches are reduced at the very point where the fractures have
occurred.
The test on 9/26/08 was to determine the force required to fracture the grooved and the
new, un-grooved torch. Three torches were tested. The first torch had no grooves and
fractured at 26 ft. lbs. Tests 2 and 3 were on the grooved torches and those fractured at
22 ft. lbs. and 23 ft. lbs., respectively.
The strength of the valve in a cylinder valve also was tested in a new MAPP gas cylinder
(W11G149W) that had been purchased just a week before the test. The top dome of that
cylinder, under test, started to deform at 15 ft. lbs. and continued to deform to 25 ft. lbs.
without a breach that would cause venting. I believe the above tests proved two things:
First, it shows that “abuse” of the torch, such as dropping it or striking it on a hard surface
or pushing against a resistance, is more likely to cause a fracture in the TS4000 torch
itself, rather than to the area of the valve in the cylinder.
Second, it shows that unless there are defects present in the cylinder, “abuse” will merely
cause deformation of the cylinder and will not cause breach of the cylinder in the area of
the valve.
The witnesses at the time of the accident did not report the Shalaby cylinder top dome to
have been deformed, indicating that less than 15 ft. lbs. force had been applied.
These defects in the cylinder, that cause the Shalaby cylinder to vent at less force that 15
ft lbs, may be the result of manufacturing problems or the result of aging and corrosion.
It is likely that Mr. Shalaby was holding the cylinder itself at the time of his accident and
not the TS4000, based on the fact of the lack of burns to his little finger of his right hand.
Hence, any force to the cylinder valve most likely was transmitted by the torch tip. Had an
“abusive” force been applied to the tip, the brass would have fractured, and not the
cylinder.
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The argument that Mr. Shalaby “abused” the MAPP gas torch and cylinder is false. The
TS4000 would fail if forces were applied to it, and a non-defective cylinder should not
vent. The conclusion is that the cylinder that Mr. Shalaby was using was defective.
Please call me if you have any questions.
Sincerely,
Robert N. Anderson, Ph.D., P.E.
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Alan J. Gould SBN 68446Law Office of Gould and Hahn5801 Christie Ave, suite 385Emeryville, CA 94608Tel. 510-428-2229, fax [email protected]
Attorneys (co-counsel) for PlaintiffsAndrew Shalaby and Sonia Dunn-Ruiz
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ANDREW SHALABY and SONIADUNN-RUIZ,
Plaintiffs,
vs.
NEWELL RUBBERMAID, INC.;IRWIN INDUSTRIAL TOOLCOMPANY; INC., BERNZOMATIC;WORTHINGTON INDUSTRIES,INC., d.b.a. WORTHINGTONCYLINDERS WISCONSIN, LLC,WORTHINGTON CYLINDERCORPORATION; THE HOMEDEPOT, INC.; and DOES 3 through100, inclusive
Defendants.
Case Number Case No. C 07cv2107MMA
SECOND AMENDED COMPLAINT
(DEMAND FOR JURY TRIAL)
I. PARTIES
1. At all times relevant herein, Plaintiff Andrew W. Shalaby (hereinafter
“Mr. Shalaby”) is and was an individual plaintiff residing in the County of Contra
Costa, City of El Cerrito, California.
2. At all times relevant herein, Plaintiff Sonia Dunn-Ruiz (hereinafter “Ms.
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EXHIBIT A
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Dunn-Ruiz”) is and was an individual plaintiff residing with, and married to, Mr.
Shalaby.
3. Plaintiffs are informed and believe, and on the basis of belief allege that
at all times relevant herein, defendant Newell Rubbermaid Inc. is and was a corporation
which, among other things, included subsidiaries which marketed and distributed
MAPP1 gas cylinders and torches as further described below. Plaintiffs are informed
and believe, and on the basis of belief allege that Newell Rubbermaid, Inc. was duly
formed under the laws of the state of Georgia, with its principle place of business
located at 3 Glenlake Parkway, Atlanta, GA 30328, Phone (770) 418-7000.
4. Plaintiffs are informed and believe, and on the basis of belief allege that
at all times relevant herein, defendant IRWIN Industrial Tool Company (hereinafter
"IRWIN") is and was a corporation duly organized and existing under the laws of the
State of Delaware, and which, among other things, included the unincorporated
subsidiary defendant BERNOZMATIC, which marketed and distributed MAPP gas
cylinders and torches as further described below. Plaintiffs are informed and believe
on the basis of belief allege that at all times relevant herein IRWN is and was a wholly
owned subsidiary of Newell Rubbermaid, Inc., with IRWIN's principal place of
business located at 8935 Northpoint Executive Dr., Huntersville, NC 28078, Phone
(704) 987-4555, Fax: 704-987-4340.
5. Plaintiffs are informed and believe, and on the basis of belief allege that
at all times relevant herein, defendant BERNZOMATIC (a.k.a. "BERNZOMATIC, an
Unincorporated Division of IRWIN INDUSTRIAL TOOL COMPANY"(hereinafter
"BERNZOMATIC")) is and was a wholly owned subsidiary of IRWIN and NEWELL
RUBBERMAIND, INC.
1
MAPP gas is liquefied petroleum gas (LPG) mixed with methylacetylene-propadiene.2ND Amended Complaint -2- Case No. C 07cv2107 MMA
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6. Plaintiffs are informed and believe, and on the basis of belief allege that
at all times relevant herein BERNZOMATIC distributed and manufactured the
"BERNZOMATIC" brand MAPP gas cylinders and "TS 4000" torch handles (a.k.a.
"torches") referenced throughout this second amended complaint.
7. BERNZOMATIC alleges that WORTHINGTON INDUSTRIES were
subcontracted to manufacture all of BERNZOMATIC's MAPP gas cylinders from
approximately September 17, 2004 onward, until approximately January 2, 2007, when
a legal dispute may have terminated the relationship of the two companies (see Irwin
Industrial Tool Company et al v. Worthington Cylinders Wisconsin, LLC et al
(06/25/2008) U.S. Federal Court Case Number 3:08-cv-00291-MR-DCK, Western
District of North Carolina (Charlotte)). (Posted at www.bernzomaticinjuries.com under
“internal disputes”)
8. Plaintiffs are informed and believe, and on the basis of belief allege that
at all times relevant herein, defendant WORTHINGTON INDUSTRIES, INC, a.k.a.
WORTHINGTON CYLINDERS WISCONSIN, LLC; and WORTHINGTON
CYLINDER CORPORATION, (hereinafter collectively "WORTHINGTON") is and
was a corporation which, among other things, manufactured MAPP gas cylinders and
torches for BERNZOMATIC and other companies, from approximately September 17,
2004 onward, and is believed to still be in the business of manufacturing MAPP gas
cylinders as of the date of filing of this second amended complaint.
9. Plaintiffs are informed and believe, and on the basis of belief allege that
Defendant The Home Depot, Inc. is, and at all times relevant was, a corporation
organized and existing under the laws of the State of Delaware, with its principal place
of business in Atlanta, Georgia. Plaintiffs are informed and believe, and thereon allege,
that The Home Depot, Inc. is a retail seller of hardware, appliances, building materials,
gardening materials, and other home improvement supplies, which operates stores
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throughout the United States, including California, with stores in the cities of
Emeryville (Alameda County) and El Cerrito (Contra Costa County), California. The
Home Depot, Inc. sells, among other things, BERNZOMATIC Brand MAPP Gas
torches.
10. Plaintiffs are informed and believe, and on the basis of belief allege that
at all times relevant herein, all of the above named defendants have manufactured,
distributed, and/or sold MAPP gas cylinders and torches under the names of
BERNZOMATIC, ACE HARDWARE CORPORATION, SEARS, LENOX, and other
brand names.
11. Plaintiffs are ignorant of the true names and capacities of defendants sued
herein as DOES 3 through 100, inclusive, and therefore sues those defendants by such
fictitious names. Plaintiffs will amend this complaint to allege the true names and
capacities of said defendants if and when that information is ascertained.
12. Plaintiffs are informed and believe that at all times mentioned herein,
defendants and each of them were the agents, servants, joint venturers, authorized
representatives, delegates and/or successors of the other defendants named herein, and
were acting within the course and scope of said agency, service, joint venture,
representation, delegation and/or succession.
JURISDICTION and VENUE
13. The court has original jurisdiction of this action under 28 U.S.C. § 1332,
based upon the parties' complete diversity of citizenship, in that it is a civil action
between citizens of different states in which the amount in controversy exceeds the sum
of $75,000, exclusive of interest and costs.
14. Venue is proper in the Northern District of California, pursuant to 28
U.S.C. § 1441(a), as well as Civil Local Rules 3-2 (c) and (d), on the grounds that this
action was commenced in the Superior Court of the State of California, in and for the
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County of Alameda, and was subsequently removed to this Court by defendants
pursuant to 28 U.S.C. § 1441(a).
FACTUAL ALLEGATIONS
15. Approximately in August of 2005, Mr. Shalaby purchased a
BERNZOMATIC brand MAPP Gas torch kit from a Home Depot store near his home
in El Cerrito, California. The torch kit included the two components of a
BERNZOMATIC MAPP Gas torch: a yellow colored MAPP Gas canister, or cylinder,
and a torch head assembly ("torch"), the tip of which emits a flame when the torch is
in use. A true and correct copy of the cylinder and torch which caused Mr. Shalaby’s
injuries underlying this action is attached as Exhibit A hereto. The flame is intended
to be used for soldering, welding, lighting charcoal, and other purposes that are
described on the cylinder labels, on BERNZOMATIC internet website:
http://www.BERNZOMATIC.com, and in other product related instructions and
promotional materials.
16. The BERNZOMATIC torch is designed and intended to be screwed on
to a threaded metal neck of the MAPP Gas cylinder. Once attached to the cylinder, the
torch is designed and intended to be ignited when the user activates a trigger switch that
is a part of the torch assembly.
17. Soon after Mr. Shalaby purchased the BERNZOMATIC torch kit from
Home Depot, he purchased several replacement BERNZOMATIC MAPP Gas
cylinders from Home Depot and/or Ace Hardware to use once the original cylinder that
came with the torch kit was depleted of MAPP Gas.
18. Plaintiffs and their two children are avid campers. They own a
recreational vehicle which they use on a regular basis to tour and park for overnight
stays at designated campgrounds that accommodate recreational vehicles.
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19. While camping, Plaintiffs regularly light wood campfires in the evenings.
Up until April 21, 2006, Mr. Shalaby typically ignited the family's campfires by using
his BERNZOMATIC MAPP Gas torch to ignite the firewood. Mr. Shalaby stored the
torch in a dedicated compartment of the motorhome, along with the MAPP Gas
canister, which Mr. Shalaby carefully protected by wrapping in a terrycloth towel.
20. The MAPP Gas torch kit contained a written representation that, among
other things, one of the intended and/or acceptable uses of the torch was for "lighting
grills." By making this representation, BERNZOMATIC intended for consumers to use
its MAPP Gas torches to start cooking and/or recreational campfires, and knew or
should have known that some consumers would use its torches in the manner that Mr.
Shalaby used his torch at the time of the incident which is the subject of this lawsuit,
as set forth in more detail herein below.
21. Neither the torch nor the MAPP Gas cylinder contained a warning against
using the torch to ignite a wood campfire.
22. Defendants and each of them at all times herein mentioned knew and
intended that the BERNZOMATIC Brand MAPP Gas torches that they designed,
manufactured, marketed and sold would be purchased and used by consumers without
the requisite knowledge of what constitutes material defects in the product, and thus
without inspection for defects therein or in any of its component parts.
23. The MAPP gas cylinder at issue contained a brazed “bushing” on top.
The cylinder issue failed at the brazed bushing joint, at the location shown by the white
card inserted into the cylinder in Exhibit B hereto.
24. The MAPP Gas torch and/or cylinder at issue in this case was, at the time
Mr. Shalaby purchased it, defective and unsafe for its intended purposes in that the
design, manufacture and/or workmanship of the torch or its component parts were such
that the bushing failed and breached under anticipated uses and/or conditions that the
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defendants themselves admit, in writing, should never have caused breach of the
cylinder.
A.The Incident
25. During the week of April 17, 2006, Plaintiffs were vacationing at the
"Campland on the Bay" recreational vehicle resort, located at 2211 Pacific Beach Drive
in San Diego, California.
26. On or about the evening of April 21, 2006, Mr. Shalaby was severely
injured when he attempted to use the MAPP gas torch and cylinder to re-light a
campfire. In particular, the bushing area shown in Exhibit B hereto failed once the tip
of the torch lightly struck against a piece of firewood, and an extremely large flame
erupt from the cylinder, engulfing Plaintiff from head to tow, causing severe
circumferential burns to his legs, severe burns to both his hands, and serious second
degree burns to is face. Mr. Shalaby was hospitalized for three weeks, underwent two
surgeries and blood transfusions, and suffered severe physical and emotional injuries
and impairments. The injuries are permanent, with residual impairment and pain.
27. Defendant Worthington admits that “these cylinders do not fracture
without being subjected to substantial force...neither the torch nor the cylinder will fail
if lightly struck against a piece of firewood,” thereby admitting that a breach of the
cylinder when “lightly struck against a piece of firewood” could not occur absent a
defect of the cylinder.
28. Plaintiffs allege that the application of force to the brazed joint of the
bushing of the cylinder can only occur if the cylinder and torch assembly are held by
the cylinder itself, and a force is applied to the torch tip or tube above the torch’s
fracture groove. Alternatively, force can be applied to the specified location if the
cylinder and torch assembly are held by the torch tube, and force is applied against the
cylinder. The TS4000 torch is designed to fracture at the fracture groove, upon impact,
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at a measured force of approximately 26 foot-pounds. The cylinder was manufactured
to withstand force at the brazed bushing joint in excess of 26 foot-pounds to assure that
the torch fracture groove would fail first, in the event of an impact, such as if the torch
and cylinder assembly were to be dropped onto a hard surface, as specified on
Defendants’ brochure, a copy of which is attached as Exhibit C hereto. Any measure
of force applied to the torch, no matter how high, would therefore only cause the
torch’s fracture groove to fracture, rather than rupture of the cylinder, unless the brazed
bushing joint of the cylinder is defective, or unless the fracture groove is defective and
does not fracture as intended.
29. [Res Ipsa Loquitur] Plaintiffs allege that the breach of the cylinder
causing Mr. Shalaby’s injuries could not occur absent a defect in the cylinder, or absent
a defective fracture groove design which does not permit the fracture groove to fracture
at a measure of force lower than required to fracture the cylinder’s brazed bushing
joint. Plaintiffs further allege that Defendants are incapable of disproving this
conclusion with any hypothesis or theory, therefore Plaintiffs further believe that Res
Ipsa Loquitur applies and establishes their liability in this action as a matter of law.
30. Mr. Shalaby did not misuse the torch or cylinder in any manner, from
the moment of purchase to the moment of injury. Nor has anyone else ever used or
misused the subject torch or cylinder in any manner, from the moment of purchase to
the moment of injury.
B. Ms. Dunn-Ruiz Witnessed the Incident
31. Ms. Dunn-Ruiz was less than ten feet away from Mr. Shalaby when the
BERNZOMATIC cylinder exploded and/or instantaneously discharged its contents and
enveloped Mr. Shalaby in heated MAPP Gas and fire. While she had her back turned
to her husband at the moment the explosion and/or gas discharge occurred, Ms.
Dunn-Ruiz heard the noise from the explosion and/or gas discharged, and turned
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around within seconds to see her husband engulfed in flames.
C.Plaintiffs' Damages
32. Mr. Shalaby was confined to a hospital for approximately three weeks
after the incident of April 21, 2006 involving the BERNZOMATIC torch and MAPP
Gas cylinder, receiving medical treatment for his injuries, including but not limited to
painful skin grafts and surgeries, as well as treatments for infections and other medical
complications that were proximately caused by the incident. Mr. Shalaby was
bedridden for several weeks thereafter. During his time in the hospital, Mr. Shalaby
incurred in excess of $300,000 in medical expenses, and he continues to incur
substantial medical expenses in connection with ongoing medical treatment for his
injuries.
33. At all times mentioned herein, Mr. Shalaby was and remains a
self-employed attorney at law with an active litigation practice. During the time he was
confined to the hospital, Mr. Shalaby was unable to work and, as a result, lost a
substantial amount of income. Since being discharged from the hospital, Mr. Shalaby's
ability to resume his law practice has been limited due to the physical and emotional
injuries he sustained as a result of the April 21, 2006 incident involving the
BERNZOMATIC torch and MAPP Gas cylinder. Mr. Shalaby was recently able to
resume practicing law on a limited basis, but he continues to lose a substantial amount
of business and income due to his limited ability to practice law on a full time basis.
Mr. Shalaby will continue to lose income as a result of the injuries he sustained from
the BERNZOMATIC MAPP Gas torch for an indefinite period of time.
34. Mr. Shalaby has suffered mental anguish and emotional injuries as a
result of the April 21, 2006 incident with the BERNZOMATIC torch and MAPP Gas
cylinder, including but not limited to Post Traumatic Stress Disorder, for which he has
sough treatment. Mr. Shalaby has incurred, and continues to incur, out-of-pocket
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expenses for the treatment of his emotional injuries.
35. Ms. Dunn-Ruiz has suffered severe mental anguish and emotional
injuries as a result of witnessing her husband burn as a result of the April 21, 2006
incident with the BERNZOMATIC torch and MAPP Gas cylinder while standing in
close proximity to her husband.
FIRST CAUSE OF ACTION -- STRICT PRODUCTS LIABILITY(By Mr. Shalaby Against All Defendants)
36. Plaintiffs incorporate by this reference the allegations, and each of them,
contained in paragraphs 1 through 35 above, as though fully set forth herein.
37. Plaintiffs allege that MAPP gas is an ultrahazardous substance, requiring
the utmost care in design and manufacturing of MAPP gas cylinders and torches.
38. At all times mentioned in this complaint, the BERNZOMATIC Brand
MAPP Gas torch and/or cylinder that caused Mr. Shalaby's injuries and/or its
component parts, were defective as to design, manufacture, and warnings, which
caused the torch, cylinder and/or their component parts to be in a dangerous and
defective condition and prone to failure, which made them unsafe for their intended
use.
39. Plaintiffs are informed and believe that the torch and/or cylinder
contained one or more manufacturing defects when they left the possession of Irwin
Industrial Tools, BERNZOMATIC, Home Depot and/or DOES 3 through 100
(collectively "Defendants") in that the cylinder brazed bushing joint contained
approximately only 10% or less of its intended manufacturing strength, the TS4000
torch’s fracture groove was designed to fracture at a measure of force far greater than
required to breach the cylinder in the event of impact of the torch, and a design defect
existed with respect to a “trigger-lock” which permitted and encouraged the user to
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hold the apparatus by the cylinder, greatly increasing the risk of rupture of the cylinder,
as more fully described below. Breach of the brazed bushing joint area is nearly
impossible if the torch is held at all times by the handle, but highly probable if the torch
and cylinder assembly is held by the cylinder so that force can reach the specified
bushing location in the event of an impact.
40. Plaintiffs are further informed and believe that the design of the
BERNZOMATIC torch and/or MAPP Gas cylinder that caused Mr. Shalaby's injuries
was defective because the torch and/or cylinder did not perform as safely as an ordinary
consumer would have expected them to perform when used in the manner that Mr.
Shalaby did at the time of the April 21, 2006 incident which is the subject of this case.
41. Defendants, and each of them, designed, manufactured, distributed,
marketed and/or sold the torch and cylinder, and the torch and/or cylinder contained
one or more manufacturing and/or design defects when they left Defendants'
possession.
42. As a direct and proximate result of the defective and dangerous condition
of torch, cylinder and/or their component parts as described above, Mr. Shalaby
sustained the following serious injuries and damages from using the torch in an
intended manner:
a. Deep burns and permanent scarring over 40% of his body surface
(20% graft, 20% donor sites), including his face, hands, arms and legs, requiring
surgical repair, skin grafts and continuing medical treatment;
b. physical pain and discomfort;
c. immobility;
d. disfigurement;
e. lost wages; and
f. emotional trauma and mental anguish, including but not limited to
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Post Traumatic Stress Disorder.
SECOND CAUSE OF ACTION -STRICT LIABILITY FOR FAILURE TO WARN
(By Mr. Shalaby Against All Defendants)
43. Plaintiffs incorporate by this reference the allegations, and each of them,
contained in paragraphs 1 through 42 above, as though fully set forth herein.
44. The BERNZOMATIC torch and MAPP Gas cylinder that caused Mr.
Shalaby's injuries failed to contain the following necessary instructions and warnings:
a. if the user of the product does not wear facial protection and protective
clothing, he or she could suffer severe burn injuries, blindness, or death;
b. if the tip of the torch comes into contact with a solid object, the torch’s
fracture groove may not prevent breach of the cylinder, and the cylinder
may rupture and severely injure or kill the user;
c. use of the “trigger lock” mechanism enables the user to hold the
cylinder and torch assembly by the cylinder, which could cause
application of force to the brazed bushing joint if the torch is impacted,
and could cause rupture of the brazed bushing joint area, resulting in
severe injury or death;
d. the torch must be held by the torch handle at all times, and never by
the cylinder while in use, so that the possibility of application of force to
the brazed bushing joint is greatly reduced or eliminated;
e. MAPP gas may corrode the brazed bushing joint area, causing it to
separate, resulting in severe injury or death; and
f. MAPP gas cylinders may fail and explode unexpectedly, causing
severe injury or death.
45. These dangers and risks were known or should have been known to
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Defendants at the time the torch and MAPP Gas cylinder were designed, manufactured,
distributed, marketed and sold.
46. These risks presented a substantial danger to purchasers and users of the
torch that ordinary consumers would not have recognized or expected, particularly
without adequate warning.
47. Mr. Shalaby was injured when he used the torch in a manner that was
intended and foreseeable to Defendants.
48. The lack of sufficient instructions or warnings, as well as the defects
described above, were the proximate causes and/or substantial factors in causing Mr.
Shalaby's injuries.
THIRD CAUSE OF ACTION – NEGLIGENCE(By Mr. Shalaby Against All Defendants)
49. Plaintiffs incorporate by this reference the allegations, and each of them,
contained in paragraphs 1 through 48 above, as though fully set forth herein.
50. Plaintiffs are informed and believe, and on the basis of belief allege that
all of the above-captioned defendants designed, manufactured, distributed, marketed
and/or sold the BERNZOMATIC Brand torch and MAPP Gas cylinder that caused Mr.
Shalaby's injuries.
51. Plaintiffs are informed and believe, and on the basis of belief allege, that
the cylinder which caused Mr. Shalaby’s injuries was manufactured by Worthington
for BERNZOMATIC and IRWIN.
52. The torch and cylinder which caused Mr. Shalaby’s injuries bore
BERNZOMATIC labels, and are the same as shown in Exhibit A hereto.
53. Defendants were negligent in designing and/or manufacturing the torch
and MAPP Gas cylinder in that they failed to use the amount of care in designing
and/or manufacturing the torch and cylinder that a reasonably careful designer and
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manufacturer would use in similar circumstances to avoid exposing others to a
foreseeable risk of harm caused by the ultrahazardous MAPP gas contained in the
cylinders.
54. Defendants’ “trigger-lock” design is an inherent design defect because
it enables and encourages the user to hold the torch and cylinder assembly by the
cylinder, which then creates a risk of rupture of the brazed bushing joint in the event
of impact of the torch against a solid object. The only way to prevent this risk is to
assure that the torch is held by the handle at all times during use to assure force cannot
transfer to the brazed bushing joint area of the cylinder.
55. Mr. Shalaby was harmed as a proximate result of Irwin Industrial Tools'
negligence when the BERNZOMATIC Brand MAPP Gas cylinder exploded and
instantaneously discharged its contents. At the time of the explosion, Mr. Shalaby held
the torch and cylinder assembly by the cylinder itself, therefore the light tapping force
of the torch tip against a piece of firewood transferred the force to the brazed bushing
joint area, which failed under an estimated force of less than three foot-pounds.
56. The negligence of defendants, and each of them, in the design and
manufacture of the subject torch and cylinder as specified above, was the proximate
cause of Mr. Shalaby’s injuries.
57. The negligence of defendants, and each of them, as set forth above, was
a substantial factor in causing Mr. Shalaby's injuries.
FOURTH CAUSE OF ACTION – NEGLIGENT FAILURE TO WARN(By Mr. Shalaby Against All Defendants)
58. Plaintiffs incorporate by this reference the allegations, and each of them,
contained in paragraphs 1 through 57 above, as though fully set forth herein.
59. Defendants, and each of them, were negligent by not using reasonable
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care to adequately warn or instruct consumer's about the dangerous condition(s) in the
BERNZOMATIC Brand MAPP Gas torch's and/or cylinder that caused Mr. Shalaby's
injuries, or about circumstances that are likely to make the consumer's use of the torch
dangerous.
60. Defendants, and each of them, knew or reasonably should have known
that the torch and MAPP cylinders presented an unreasonable danger of explosion, or
that the cylinder was likely to explode, when used in a reasonably foreseeable manner.
61. Defendants knew or reasonably should have known that users of the torch
would not realize this danger, yet failed to adequately warn of the danger or instruct
users on the safe use of the torch to prevent the type of injuries that Mr. Shalaby has
sustained.
62. A reasonable designer, manufacturer, marketer, distributor and seller
would have warned of this danger, or instructed users on the safe use of the torch, to
prevent that type of injuries that Mr. Shalaby has sustained.
63. The negligence of the defendants, and each of them, in failing to provide
adequate warnings as set forth above, was a proximate cause of Mr. Shalaby’s injuries.
64. The negligence of the defendants, and each of them, in failing to provide
adequate warnings as set forth above, was a substantial factor in causing Mr. Shalaby’s
injuries.
FIFTH CAUSE OF ACTION - GROSS NEGLIGENCE(By Mr. Shalaby Against All Defendants)
65. Plaintiffs incorporate by this reference the allegations, and each of
them, contained in paragraphs 1 through 64 above, as though fully set forth herein.
66. Defendants, and each of them, knew for at least a year or longer
preceding Mr. Shalaby’s injuries, that the brazed bushing joint of their MAPP gas
cylinders had on occasion breached and caused severe injuries due to design or
manufacturing defects.
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67. Defendants, and each of them, knew for at least a year or longer
preceding Mr. Shalaby’s injuries, that the TS4000 Torch handles (torches) contained
fracture grooves that in several instances had malfunctioned, causing the MAPP gas
cylinder brazed bushing joints to breach instead, and causing severe injuries to others.
68. Defendants, and each of them, knew of the above-described defects
additionally because they have been sued several times over theses defects, as disclosed
at www.bernzomaticinjuries.com (listed under “lawsuits” tab with links to the Court
pleadings).
69. Defendants, and each of them, knew for at least a year or longer, and
know at present as well, that breach of the MAPP gas cylinders at the brazed bushing
joints was and is impossible absent a defect in either the cylinder at the location of the
brazing compound, or the fracture groove of the BERNZOMATIC torches.
70. Plaintiffs are informed and believe, and on the basis of belief allege, that
the defendants, and each of them, are incapable of presenting any hypotheses or
theories of any kind, that would show how their MAPP gas cylinders could breach at
the brazed bushing joint area, in the event of an impact anywhere on either the torch
or cylinder, while the torch is attached, unless a defect of the cylinder or torch’s
fracture groove design exists.
71. Plaintiffs are informed and believe, and on the basis of belief allege, that
the failure of defendants, and each of them, to adequately warn users and consumers
of its MAPP gas cylinders and torches of the potential failures of the brazed bushing
joint, and the failure of defendants, and each of them, to immediately correct the
defects of the brazed bushing joint area and/or torch fracture groove design and/or both,
while Defendants and each of them were aware of the hazards, procure the liability of
all named defendants for gross negligence.
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SIXTH CAUSE OF ACTION – BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
(By Mr. Shalaby Against All Defendants)
72. Plaintiffs incorporate by this reference the allegations, and each of them,
contained in paragraphs 1 through 71 above, as though fully set forth herein.
73. Mr. Shalaby was proximately harmed by the BERNZOMATIC Brand
torch and MAPP Gas cylinder used in the April 21, 2006 incident because the torch and
cylinder did not have the qualities, reliability and safety that a reasonable consumer
would expect.
74. At the time he purchased the torch, Defendants were in the business of
selling BERNZOMATIC Brand torches and MAPP Gas cylinders.
75. The BERNZOMATIC torch and MAPP Gas cylinder that caused Mr.
Shalaby's injuries were not of the same quality as those generally acceptable in the
industry, and were not fit for the ordinary purposes for which such products are used.
The failure of the torch to have the expected quality that it should have had was a
proximate cause and/or a substantial factor in causing Mr. Shalaby's injuries.
SEVENTH CAUSE OF ACTION – NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
(By Plaintiffs Against All Defendants)
76. Plaintiffs incorporate by this reference the allegations, and each of them,
contained in paragraphs 1 through 75 above, as though fully set forth herein.
77. Defendants, and each of them, were negligent in designing,
manufacturing, distributing and selling the defective BERNZOMATIC Brand torch and
MAPP Gas cylinder that caused Mr. Shalaby's injuries.
78. Ms. Dunn-Ruiz was present at the scene of the April 21, 2006 incident
involving the explosion and/or instantaneous discharge of the contents of the MAPP
Gas cylinder in Mr. Shalaby's hands, when it occurred, and was aware at the time that
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her husband was sustaining severe and life threatening injuries.
79. Both Mr. Shalaby and Ms. Dunn-Ruiz suffered serious emotional distress
as a result of experiencing and observing the April 21, 2006 incident, respectively,
including severe mental suffering, grief, anguish, anxiety, depression, worry, shock,
and in the case of Mr. Shalaby, Post Traumatic Stress Disorder.
80. The negligence of Defendants, and each of them, in designing,
manufacturing, distributing, marketing and selling the defective torch and/or MAPP
Gas cylinder was a proximate cause and/or a substantial factor in causing Plaintiffs'
serious emotional distress.
PRAYER FOR PUNITIVE DAMAGES
Plaintiffs allege that Defendants can easily and inexpensively manufacture the
MAPP cylinder as one unified part, similar to scuba tanks, of non-corrosive metal, and
can likewise easily and economically manufacture torches which fracture at the fracture
groove at a sufficiently low measure of force to prevent the cylinders from breaching.
Plaintiffs allege that for a period of not less than one year preceding Mr. Shalaby’s
injuries, all of the above-captioned defendants knew that the MAPP gas cylinders they
distributed and manufactured were capable of occasionally breaching at the brazed joint
area, where the horizontal surface of the cylinder meets the vertical surface of the
narrow housing containing the threads for mounting the torch, and further, that breach
of the cylinder could cause severe injury or death. Evidencing this awareness,
BERNZOMATIC manufactured a safety “fracture groove” on the torch specifically to
prevent this type of a breach and resultant injuries. Before Mr. Shalaby suffered his
injuries, BERNZOMATIC disclosed on its website what would happen if the cylinder
breached at the specified location: “If the center bushing fails, then an extremely large
8 to 10 foot flame will erupt from the cylinder.”2 Plaintiffs further allege that the
2http://www.BERNZOMATIC.com/RESOURCES/GLOSSARY/tabid/220/Default.aspx2ND Amended Complaint -18- Case No. C 07cv2107 MMA
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above-captioned defendants had been sued several times before Mr. Shalaby sustained
his injuries, and by virtue of those earlier suits, were aware that on occasion their
MAPP gas cylinders breached at the specified locations and caused severe injuries,
while on several occasions the safety fracture grooves entirely failed to fracture and
prevent the injuries.3 The above-captioned defendants took no known action
whatsoever to remedy the defects or warn the public of the potential catastrophic
failures, and as a result of their failure to so-act, Mr. Shalaby and several others,
including plaintiffs filing suits as recent as the year of this pleading, have suffered
catastrophic burn injuries. Plaintiffs allege that the captioned defendants continue to
take no action to remedy the above-described defects, and still do not warn of the risk
of the above-described failures. For these reasons, and upon satisfactory proof of these
allegations, Plaintiffs pray for a substantial award of punitive damages on grounds that
the above-captioned plaintiffs refused to take timely action to remedy the defects or
disclose the dangers before Mr. Shalaby and others had suffered their grave injuries,
and to deter these defendants from refusing to immediately remedying the described
defects before more persons are severely injured or killed.
DAMAGES PRAYER .
Wherefore, Plaintiffs DEMAND A JURY TRIAL, and pray that a judgment be
entered against Defendants, and each of them, as follows:
1. For general damages, including but not limited to damages for emotional
distress, pain and suffering, according to proof;
2. For special damages, including but not limited to out of pocket medical
expenses and incidental expenses related to Mr. Shalaby's injuries, and lost income,
3In every reported suit, the fracture grooves did not fracture. Plaintiffs knowof no known instance where the fracture grooves had fractured or performed theirintended function.2ND Amended Complaint -19- Case No. C 07cv2107 MMA
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according to proof;
3. For exemplary damages;
4. For prejudgment interest according to law;
5. For costs of suit incurred in this action; and
6. For any other and further relief that the court deems just and proper.
Dated: December 23, 2008 s/ Alan J. Gould, co-counsel for PlaintiffsAndrew Shalaby and Sonia Dunn-Ruiz
2ND Amended Complaint -20- Case No. C 07cv2107 MMA
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
Case 3:07-cv-02107-MMA-BLM Document 98-3 Filed 12/23/2008 Page 24 of 24
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CERTIFICATE OF SERVICE
I, Geraldine Sutkowski, declare as follows:
I am a citizen of the United States, over the age of eighteen years and not aparty to the within entitled action. I am employed at 737 Avila Place, CA, 94608. OnOctober 21, 2009 I served the attached:
[APPELLANTS’] EXCERPTS OF RECORD, VOLUME 1[APPELLANTS’] EXCERPTS OF RECORD, VOLUME 2[APPELLANTS’] EXCERPTS OF RECORD, VOLUME 3[APPELLANTS’] EXCERPTS OF RECORD, VOLUME 4
on the interested parties in said action, by placing a true copy thereof in sealedenvelope(s) addressed as follows:
(Attorney for Newell OperatingCompany, Irwin Industrial Tool, HomeDepot, and Bernzomatic - )
Shelley Gershon HurwitzHOLLAND & KNIGHT, LLP633 W. Fifth St., 21st FloorLos Angeles, CA 90071-2040
(Attorney for Worthington Industries)
Richard Allen ErgoBowles & Verna (for both)2121 N. California Blvd, Suite 875 Walnut Creek , CA 94596
(Attorney for Western Industries, Inc.)Lowell T. Carruth
McCormic, Barstow, Sheppard, Wayte& Carruth LLPP.O. Box 289125 River Park Place EastFresno, CA 93720-1501
and served the named document in the manner indicated below:
BY MAIL: I am familiar with the practices of the U.S. Postal Service, and I caused
true and correct copies of the above documents, by following ordinary business
practices, to be placed and sealed in envelopes(s) addressed to the addressees, at an
office of the U.S. Postal Service in El Cerrito, California, for collection and mailing
by first class mail with the United States Postal Service.
The copies of the documents served on Western Industries were in electronic format,
in Adobe PDF, on a compact disc, pursuant to stipulation between Appellants and
Western Industries.
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct. Executed October 21, 2009, at El Cerrito,
