In product liability litigation, many of the cases involve horrible things that have happened to good people. Often they then sue a company looking to assess blame and receive some form or compensation or satisfaction. At first blush, that’s more than understandable. But often times the defendant company didn’t cause the problem, or public policy and the law — for good reason — don’t place blame with the company. In those cases, it is important to dispassionately stress those legal arguments and steadfastly stick to them as long as necessary.
Elliot v. El Paso Corp., No. 2013-CA-01173-SCT (Sept. 3, 2015 Miss. Sup. Ct.), is just that type of case. It involved a family forced to run from their home during the night while a fire engulfed their house. Id. at p. 3-4. The results were horrible. One of them died, and the others were injured. Id. at 3. The family had a propane gas tank that they used to supply propane heaters in their house, and the fire started near one of those propane heaters. Id. at 4. The family did not use natural gas, but a natural gas pipeline ran underneath the street in front of their home, and that pipeline had a crack and natural gas made its way to the soil in the family’s yard. Id. The court’s decision states that, at the time of the fire, the home was filled with either propane or natural gas. Id. at 4. We suspect that this was likely in hot dispute in the litigation.
The family did not smell natural gas, which ordinarily has a rotten-egg odor. That odor is not natural. Distributors add an odorant, which then acts as a warning mechanism for leaks. Id. at 4. The odor, however, can fade over time, something known as “odorant fade.” Id. at 5. Ultimately, the family — no doubt through consultation with plaintiffs’ lawyers — chose to point to natural gas as the cause of the fire, claiming that they did not smell the gas due to odorant fade. They sued a whole host of defendants involved the distribution and transport of the natural gas and asserted a number of product liability and negligence claims.
This was surely a case involving a horrible event that happened to people who didn’t deserve it. But there were serious legal problems with seeking a remedy against these defendants. And it appears that the defense went about asserting those legal defenses dispassionately and steadfastly, and they ultimately won before the Mississippi Supreme Court. The three defendants were: (1) the manufacturer of the odorant used in the natural gas, Chevron Phillips Chemical Company, LP (CPChem); (2) the odorant distributor, Tri-State Meter and Regulator Service, Inc. (Tri-State); and (3) the operator of the interstate natural gas pipeline, Tennessee Gas Pipeline (TPG). Id. at 5-6.
It is important to note that none of these defendants actually transported natural gas anywhere near the family’s home. TPG transported the natural gas to a utility company at a transfer point miles away from the family’s house. At that point, the natural gas did not even contain odorant. The utility company added the odorant, which it had purchased from Tri-State, the distributor for CPChem. The utility company then transported the now-odorized natural gas through the pipeline that ran under the street in front of the family’s house. But the family had already settled its claims against the utility company. Moreover, the family was not a user or purchaser of the natural gas. In other words, none of the claims before the Mississippi Supreme Court were against companies who had transported the natural gas in front of the family’s home or sold it to the family. That’s where the law stepped in and cut off liability.
As to TPG, the court held that the Mississippi’s Product Liability Act (MPLA) simply did not apply. Under the MPLA, the defendant must be a manufacturer or seller, and TPG was neither. Id. at 14. Nor could the family assert a common-law negligence claim against TPG. Neither the common law nor statutory law imposes a “duty” to warn of odorant fade on a company that merely transports natural gas across the country. Id. at 12. The court also saw significant “proximate causation” problems. TPG “did not maintain the pipeline” under the street in front of the family’s house and “did not sell odorant or inject odorant into the” natural gas. TPG was simply the wrong defendant.
As to the other two defendants, CPChem (the odorant manufacturer) and Tri-State (the distributor who sold to the utility company), the court found significant holes in the family’s claims. Their design defect claim failed because “no expert … offered any alternative chemical design for the allegedly defective odorant.” Id. at 16. That’s a big problem. A feasible alternative design is prima facie element of any design defect claim. Rather, one of the family’s experts conceded that a different odorant would not have made a difference, because all odorants are susceptible to odorant fade. Id. at 17. The family tried to sidestep this by arguing that the distributor should have required end-users to purchase gas detectors. But this isn’t a design defect of the product. It reads, instead, like a general requirement that could only be imposed on end-users by the legislature or an administrative agency. The court rejected this argument and, with it, the family’s design defect claim. Id. at 18.
As to their failure to warn claim, the court properly noted that the odorant’s end-users were not the family (who didn’t even use natural gas), but the utility company. Id. at 21. Moreover, the family offered no evidence that the utility company was unaware of odorant fade (it likely was). As the court put it, “[t]he ‘ordinary users or consumers’ of natural-gas odorant are utility and pipeline companies — not the general public.” Id. The court held that, since the family was not an end-user of the odoran — or a user of natural gas at al l— “their claims against the odorant manufacturer [CPChem] and the odorant seller [Tri-State] for failure to warn are barred by the MPLA.” The court held that CPChem and Tri-State were entitled to summary judgment.
There may have been a proper defendant in this case. But the family likely had already settled with that defendant. If the settlement was insufficient, the law and public policy does not open up the courts so that plaintiffs can try again by attempting to extend liability to other companies who had no duty to plaintiffs or proximate connection to their injuries. This incident was tragic. But this is also an example of defendants asserting their defenses properly — that is, dispassionately and steadfastly. It seems to us that the court ultimately got this one right.
