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Michael Monheit
Michael Monheit
Attorney • (215) 840-6573

Wall Street Journal’s Gas Can Job Loss Claim is Short Sighted

18 comments

The Wall Street Journal recently took up the issue of "job losses" being caused by the tort system with its editorial on the bankruptcy of Blitz, a gas can manufacturer. However, it seems that they missed the bigger picture. There are a number of factors that were not taken into consideration.

The motives for Blitz refusing to make their product safer will certainly be revealed as the facts are discovered. But as a trial attorney who has seen cases involving short-term corporate greed outweighing the need to provide a safe product to consumers, I imagine this case may turn out to be the same. We already know from a former Blitz employee some of the background on what took place at Blitz. So let's first look at some of the motives for Blitz to declare bankruptcy and what the WSJ "missed" or left out of their reporting.

First, let's be clear that the demand for gas cans has not diminished. People will want to buy gas cans and some smart company will produce them. There are other great American companies, such as the No-Spill Gas can, that supply safe gas cans, and make a profit doing so. Lucky for the public there are companies like No-Spill, who make gas cans that have been shown to be safer than the ones Blitz manufactured. Thus, demand is not gone. Jobs are not gone. Just a matter of which company will employ people to make gas cans to meet the demand. These jobs are not gone, they are just going to be transferred somewhere else. Perhaps to another company related to Blitz's corporate owners or to a competitor of Blitz, happy to see Blitz out of the market. That part of the story remains to be told.

There was something very real that was eliminated by the Blitz bankruptcy. Something that should anger the public. The real thing that was eliminated by the Blitz bankruptcy was not jobs – the jobs will go elsewhere – consumers will buy from someone else. Motive #1 – eliminate the rights of past victims. What was eliminated was Blitz's obligation to pay for the damages that they have been accused of causing to burn victims as a result of a product proven to be less safe than other products on the market. You can read about these victims here, here, and here. And you can watch Wal-Mart laugh about these victims here. And in the end, who will be left paying the price for the lost productivity and medical bills from these harmed victims? Not Blitz. Makes you angry, right?

In addition, the Blitz bankruptcy is being used to try to eliminate future claims by pre-empting them through Federal law. That is Motive #2 – eliminate the rights of future victims. By seeking to modify The Children’s Gasoline Burn Prevention Act, the Portable Fuel Container Manufacturers Association (PFCMA) is seeking changes to the law so that they can escape future liability for injuries they will cause.

Now, let us turn to whether gas cans are inherently dangerous, or whether only through misuse can these horrible injuries occur. That is what the Wall Street Journal and Blitz want you to believe.

According to former and 17-year Blitz employee, William Bailey, Blitz could have made their gas cans safer but made a conscious decision not to do so. Bailey was a Production Supervisor, Warehouse Manager, Quality Tech, and a Plant Manager for Blitz. As such, he knew the company inside and out. Bailey, in an open comment to The Wall Street Journal posted the following important facts that were overlooked by the WSJ in their original article. He stated as follows:

  • As an employee of Blitz I was instructed to destroy documents and e-mails. I wrote a letter to ROCKY FLICK the CEO of Blitz expressing my concerns about destruction of documents.
  • I knew that Blitz was breaking the law by destroying evidence and I pretty much called Flick on the carpet for this. Once I was terminated, I immediately called Diane Brenaman to help the victims who were using Blitz USA's faulty gas can containers.
  • Blitz USA has never used a true FMEA for these gas can designs so that all dangers would be addressed.
  • Blitz USA never had a Formal Documented Quality system in place.
  • Blitz USA could have spent roughly $250,000 for tooling to implement a flame arrestor on their gas cans but chose to spend millions defending their position.
  • Blitz USA had a metal fabrication shop that could have produced these 3 cent arrestors at minimal expense.
  • Blitz USA could have recalled all their spouts and sent out new ones with flame arrestors. This would have been more cost effective than spending money on defense attorneys.
  • Blitz had used of unapproved resin for 20+ years, distorted warning labels on the cans water spots, had excess regrind used beyond UL spec., sold gas cans under minimum weight, wall thickness, sold gas cans to California with falsified date wheels ($90,000 fine paid to CARB), had 5 defective spout designs in the last 20 years and none had flame arrestors, and had a 1 million can re-call in California for not meeting CARB requirements.

Well, with all of these dangerous products already sold, sitting in peoples homes all across the USA, is it any wonder that the corporate owners of Blitz would want to eliminate future liability? Let's keep our eyes dry for Blitz. Save the tears for the victims past and future, who may never have a day in court due to Blitz running from their responsibility. They refused to make their product safe, maybe worse, and now they are making the victims of the unsafe design pay the price for that decision. There are millions of these unsafe products in homes all across the United States, but when the next one explodes, and the next one after that, Blitz will have wiped their hands clean of any duty to compensate those harmed.

18 Comments

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  1. Mark Bello says:
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    Michael: An extremely important and well-written post. The Wall Street Journal needs to follow-up their original story with an even bigger one, apologizing for not doing adequate research on the topic and on the company it shouldn’t have pitied.

    I fear, however, that your correction of the record will be ignored and the original story will be the image that becomes ingrained in people’s minds. That is where the Wall Street Journal must come in and correct the record, exactly where it was originally reported.

    As the facts and atrocities become more known, all of us have a duty to report them. If Blitz lands on its feet, establishes operations elsewhere, and continues manufacturing defective and dangerous products, we need to be there to report on those efforts and the dangers posed by those products. This will require vigilance and a continuing group effort to protect the public from corporate predators like Blitz.

    That you used your bully pulpit to not only expose Blitz but to compliment a competitor for manufacturing safer products is to your credit and theirs. Congratulations to you and to No-Spill for helping to keep all of us safe.

    Regards, Mark

  2. Truckie D says:
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    Well written and interesting.

    td

  3. Lewis says:
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    The lawyer that is writing this article is apparently sympathetic toward the lawyers that were trying to take Blitz USA for everything they were worth. Most lawyers are snakes. This is a classic case of someone sueing a company because they burnt their tongue on hot coffee. Who would have ever guessed that coffee is hot? Who would have ever guessed that gasoline is flammable? Here’s a fact for you: Gas Cans DO NOT EXPLODE under normal conditions. In order for something like this to explode it needs to be under tremendous internal pressure. BUT, these gas cans supposedly leak fumes, right? So, if they leak fumes then how was there any pressure inside the can for it to explode? The real reason why people may have burned themselves is because they got GAS too close to FIRE. Plain and simple. We’re not a nanny state and we can’t protect people from making idiotic decisions. Here’s one example of a case that Blitz USA lost: A guy starts a fire in his wood-burning stove in his trailer. He then takes a gas can (full of gasoline) into his trailer and pours it on the fire (smart move). His trailer then catches on fire as he runs out his front door, not even thinking to grab his little daughter. She burned to death. Who is at fault here? The maker of the gasoline? The maker of the trailer? The maker of the gas can? God himself? No, the obvious idiot is at fault here and should be in prison for murder.

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    Lewis, thanks for sharing your knowledge of plastic gas cans. I can tell that you care about this issue. I also agree that there are a lot of really poorly informed people out there. I am trying to figure out where you fit in that spectrum of people.

    I have a few questions for you: Question #1: What is a flame arrester (do you have a photo of a flame arrester)? Question #2: Does Blitz put flame arresters in any of their gas cans (I hear that Blitz has 150 million gas cans out there in homes across the country)? Question #3: Do any manufacturers of plastic gas cans install flame arresters in their cans? Question #4: Do you think the “No Spill” gas can manufacturer from Kansas is a stupid company? No-Spill puts a flame arrester in all of their plastic gas cans and unlike Blitz their customers are not being burned by gas can explosions (are you sure that a gas can cannot blow up from a spark? My sister has a No-Spill gas can in her storage shed. Was she wrong to buy a No-Spill gas can wiuth a flame arrester? And will a gas can always blow up if you pour a little gas on the wood to rekindle a weak fire? blow up if it is used to pour gas on a fire? Question #5: Are all of the gas can manufacturers who put flame aresters in the spouts of their gas cans stupid? Question #6: If you made plastic gas cans (who do you work for Lewis ….? Come on, who paid you to write this comment?) would you insist that no gas can made by your company have a flame arrester installed in the spout? Question #7: Do flame arresters work? How? Question #8: Can you supply a reference for your statement that a spark will never ignite the vapor inside a gas can? [Lewis, Lewis ….. a 12 year old boy is going to suffer burns over more than 60% of his body because of you …..]

    Do you disagree with NOTES FROM THE BUNKER that:

    “Blitz made gas cans that were, in my opinion, of mediocre efficacy. However, they were cheap, widely available, and came in various sizes…”?

    I have more questions but I want to see your answers first. I live in Hawaii. I am an attorney. My name is Wayne Parsons and I live at 3907 Koko Drive, Honolulu, HI 96816-4306. I work with the community here on many safety and prevention projects. I make no money on exploding gas cans.

    How do you make money?

    You can call me at 808-753-0290. I’d like to chat with you.

    Does anyone know “LEWIS”? I supsect that we all know who you are LEWIS. You would be funny if this wasn’t such a serious subject. Shame.

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    Wayne,

    […And I am sure that is your real name, unlike perhaps “LEWIS”…]

    Thanks for the questions you have asked “LEWIS.” I wonder if he will answer even any of them. OR tell us who he really is and where he works! I think that deep down, Lewis is probably a nice person, but significantly mis-informed about the product he may have helped make and the owners of the company he now tries to defend. My guess is that Lewis is from Miami, OK or a neighboring area like Fairland, and worked for Blitz or worked at a local store that sold Blitz products, and.or has family members that worked there. Sadly, due to Blitz not making a safe product, either he is now out of a job because of the bankruptcy, or still works for an entity that is going to emerge from what once was Blitz.

    But as I mentioned, I just think that “Lewis” is lacking full information. If he had all of the facts, he would be upset that Blitz did not take steps to make their product as safely as for example No-Spill has done. And he would be interested in the real motives for the bankruptcy – to clean the slate of all past and future responsibility for harm, so that someone “new” company can take the Blitz molds and equipment and use that to manufacturer the product. He should be upset to hear that in all likelihood that the jobs are not being eliminated, just moved into some other place and given to some other people. Remember, the demand for gas cans has not diminished. Someone is going to take the equipment, hire people, and manufacture the gas cans.

    Lewis should learn more about the people running Blitz and should follow the money trail to see where that leads. Lewis should read what Mr. Bailey (who worked for the company for 17 years) had to say about the destruction of documents. William Bailey states that he was “very much aware of their deceptive practices, faulty product design, and some of their litigation strategies” of Blitz. – http://online.wsj.com/article/SB10000872396390444025204577546950866595374.html?KEYWORD=

    If Lewis reads this, he will learn about allegations of, and I again quote Mr. Bailey’s comment in The Wall Street Journal web site:

    “fraudulent practices by Blitz and their managers.
    1. Use of un approved resins for 20+ years
    2. Distorted warning labels on the cans “water spots’
    3. Excess regrind used beyond UL spec.
    4. Selling gas cans under minimum weight, wall thickness
    6. Selling gas cans to California with falsified date wheels ($90,000 fine paid to CARB)
    7. 5 defective spout designs in the last 20 years and none had flame arrestors
    8. 1 million can re-call in California for not meeting CARB requirements”

    Again, Wayne, thanks for your comments and questions. The public, and Lewis, deserve to know the answers and the truth about this product and those who owned and ran the company.

  6. Jerry says:
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    Hello, my name is William Bailey. I was employed with Blitz USA for 17 years. As an employee of Blitz I was instructed to destroy documents and e-mails. I wrote a letter to ROCKY FLICK the CEO of Blitz expressing my concerns about destruction of documents. 30 days later I was laid off and offered a severance package under the condition of a confidentiality agreement. I refused the package, felt betrayed, and felt t that I was being fired illegally.

    I knew that Blitz was breaking the law by destroying evidence and I pretty much called Flick on the carpet for this. Once I was terminated, I immediately called Diane Brenaman to help the victims who were using Blitz USA’s faulty gas can containers.

    Why did it take your termination to do the right thing?

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    Jerry,

    It sounds like Mr. Bailey did try to do something before being fired.

    “I wrote a letter to ROCKY FLICK the CEO of Blitz expressing my concerns about destruction of documents. 30 days later I was laid off and offered a severance package under the condition of a confidentiality agreement. I refused the package, felt betrayed, and felt t that I was being fired illegally.”

    He was fired for doing the right thing – speaking up about the destruction of documents.

  8. Jerry says:
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    And yet he didn’t notify anyone before he was terminated, his statement clearly states “Once I was terminated, I immediately called Diane Brenaman to help the victims who were using Blitz USA’s faulty gas can containers.” So it reads as if he did it only after he stopped getting paid by blitz. You can see why I asked the question if you actually read the comment. “Calling a CEO to the carpet” does nothing. Any CEO knows whats going on in his company. I guess I should have asked would he have called Diane if he would not have been terminated? His comment says no.

  9. William Bailey says:
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    I felt that I was doing the right thing by calling him onto the carpet. Looking back on it…you are right. I should have done more a long time ago. I should have reported it outside of Blitz USA to other authorities. I should have said something a long time ago. Again my fear was losing my job. In the end I lost my job anyway. I worked in the quality department and my job was to help make things better. My mentality was to do the right thing. Employees put a lot of trust in their managers, I spoke up and they fired me because I wanted to do the right thing.
    I am the first to admit when I screw up…and yes I screwed up.

  10. Jerry says:
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    The question was, would you have called Diane without blitz terminating you. It is easy to say yes to this question after the fact to try to feel better about the fact you knew about a potential issue with the product. The fact of the matter is you are just as responsible for the accidents as Blitz. Your knowledge of an issue puts you in the same position as the CEO you called to the carpet. Your no hero sir. The victims were not in your equation when you eventually called diane. Your merely a disgruntled employee who decided to get even with company who fired him.

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    Jerry,

    It seems you are making a circular argument. Was he fired for speaking up about the destuction of documents, or do you have evidence of some other reasons for his being fired?

    My understanding is that Mr. Bailey was terminated for speaking up within the company. He advises that he wrote a letter internally about the destruction of documents. He claims that this letter is what resulted in his termination. Do you have evidence to the contrary? Time will tell if there is anything more to it than what Mr. Bailey has written. If it is as he represents, then when he would not let up, it appears the company decided to get rid of him. Finding no recourse within the company, it sounds like he had no alternative but to seek a more public forum. Yes, I imagine he is disgruntled. Wouldn’t you be if you pointed out bad behavior and then were fired for doing so?

    Last week I read that the jobs, as I had suspected, have not really been “eliminated” and rather, that the bankruptcy may simply have removed the liability before selling the assets into a new business that can hire people back, but will have eliminated the rights of those who were injured by Blitz USA.

    Doesn’t this behavior sound consistent with the kind of people who would fire someone like Mr. Bailey for asking his employer to do the right thing by not destroying documents? Is there a similarirty because both actions appear to take away the rights of those (Mr. Bailey and consumers who made claims for being injured by the Blitz gas cans) who wanted Blitz to be held accountable for their actions and to make the company do better in the future.

  12. Mike Hunt says:
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    Hi Michael, it appears that you are a little confused in your last comment. That’s alright, let me give you some details. Regarding your last sentence, nobody on the opposing side wanted Blitz to do better in the future. They wanted the company to close down and that’s exactly what happened. Although, I’m sure that the opposing side wishes that they would have been able to milk Blitz for a few more million dollars before they closed. Maybe you don’t understand that if a company runs out of money, there is no other option but to close down and sell their assets. Although the physical building will eventually continue to make gas cans, they will be gas cans belonging to what used to be Blitz’s competitor (Scepter).

    Regarding Mr. Bailey – The unfortunate part is that he is not too technologically savvy and neither are most people (judges, juries, lawyers, etc (usually)). When Mr. Bailey was told to delete files from his email to free up some storage space, he took it as an order to “destroy evidence.” What he doesn’t understand is although he can delete these files from his email, every single word and every single file that he has ever sent or received is stored on an archive server for at least 7 years, from a 3rd party company that Blitz hired a long time ago to do just that – archive all Blitz’s electronic data. There was never any destruction of data, just one man who was not pleased with his job who took a shot at the company on a subject (data storage) that he didn’t understand. Fortunately for him, when anything technical is explained to most people, it will go right in one ear and out the other. So, people started believing Mr. Bailey’s perspective.

    This brought on a whole new strategy for the opposing attorneys and now everything related to Blitz’s data storage methods were being questioned. I’m talking about ridiculous things that anyone with the equivalent of half of a 7 year old’s tech-savvy brain would be able to understand without asking. The lawyers were even trying to accuse Blitz of destroying data because they had thrown away old computer parts that do not store data, like metal computer cases, old RAM, old and overheated motherboards, etc. And because most people don’t know the difference between a motherboard and a hard drive, these all seemed like legitimate questions.

    Anyway, trying not to ramble on, but the main point of the story is that stupidity and ignorance is the only thing that prevailed in this situation.

    I’m not sure how you even have time to write these articles. Shouldn’t you be out sueing a gun holster manufacturer because they hold guns which kill people if used improperly? But, what do you care? Your wallet is so fat that you sit at a 45 degree angle.

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    Mike Hunt, Thanks for taking the time to comment here. I respond here to your points, without making personal attacks, which you have done.

    “Regarding your last sentence, nobody on the opposing side wanted Blitz to do better in the future. They wanted the company to close down and that’s exactly what happened.”
    – Certainly they did not want the company to close down. Under those circumstances, it leaves those harmed by Blitz products without recourse.

    “Maybe you don’t understand that if a company runs out of money, there is no other option but to close down and sell their assets. Although the physical building will eventually continue to make gas cans, they will be gas cans belonging to what used to be Blitz’s competitor (Scepter).”
    – What is it about Scepter that will make them better at making gas cans without subjecting themselves to liability as compared to Blitz? Perhaps a safer design!

    “When Mr. Bailey was told to delete files from his email to free up some storage space, he took it as an order to “destroy evidence.” What he doesn’t understand is although he can delete these files from his email, every single word and every single file that he has ever sent or received is stored on an archive server for at least 7 years, from a 3rd party company that Blitz hired a long time ago to do just that – archive all Blitz’s electronic data.”
    – I am interested in Mr. Bailey’s response to this. I now have only his account as reported online and yours. The two accounts are at odds with each other.

    “This brought on a whole new strategy for the opposing attorneys and now everything related to Blitz’s data storage methods were being questioned.”
    – I have no cases against Blitz. I am not involved in these cases. I am simply an observer of what is going on in this litigation and am commenting upon it.

    I’m not sure how you even have time to write these articles. Shouldn’t you be out sueing a gun holster manufacturer because they hold guns which kill people if used improperly? But, what do you care? Your wallet is so fat that you sit at a 45 degree angle.
    – So here come the personal attacks on me. Nice. You should know that most of my practice is focused on dangerous medical devices and pharmaceutical products. I take the time to comment on topics like this one because I think it is important for the public to know both sides of this story. Blitz, with the U.S. Chamber of Commerce, tells one side of the story. I just want make sure that the other side of the story is told as well.

  14. Jerry says:
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    Asking a question is not a circular argument. It is a question. Please do not try to cloud up the fact that Mr. Bailey is just a disgruntled employee who decided to try to make himself look like a hero. My point stands, and that point is that if what he claims is true he is just as responsible as his boss or anyone else in the know.

  15. Jerry says:
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    This forum is pointless, I think I will go grab a weed eater and use it to stir my soup. I’ll give you a call if I burn my lap. I don’t think there is a discloser on the box that says do not use to stir soup.

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    Jerry, Thanks for your comment to my post, which you consider pointless, but not so pointless that you chose to comment, 3 times.

    I think your most recent post raises a great point – foreseeability.

    See: http://www.merriam-webster.com/dictionary/foreseeable : “being such as may be reasonably anticipated”

    It is not forseeable that you will stir your soup with your weed eater. But it is foreseeable, infact known by the many times it has happened, that vapors from a gas can will explode under the circumstances in which children have been tragically injured. It is also known that flame arresters work well to prevent these foreseeable explosions.

  17. Jerry says:
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    I foresee that this is my last post. Mr. Bailey feel free to stop by 1640 N Main if you decide you would like to actually answer my question. I will ask as simply as possible and not in any “circular” way. Would you have contacted Diane without being terminated? Mr. Monheit, free to stop by as well.

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    Jerry, Only Mr. Bailey can speak for Mr. Bailey. But my guess is that Mr. Bailey would not have contacted Diane without his being fired. But likewise, perhaps he would not have been fired if he did not raise this issue with his employer.

    Again, thank you for your participation. I think you raise valid points and your question for Mr. Bailey is a great one. It is important for each of us to find the strength to do the right thing, even when it is not the easy thing to do.