On March 4, 2009, when the U.S. Supreme Court ruled in its 6-3 decision, Wyeth v. Levine, that drug companies were not immune for injuring or killing patients, the Court had some noteworthy things to say about the important relationship between regulation and litigation. For example, the Court noted the “longstanding coexistence of state and federal law and FDA’s traditional recognition of state-law remedies.” It stated, “[Congress may] have recognized that state-law remedies further consumer protection by motivating manufacturers to produce safe and effective drugs and to give adequate warnings. …State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly [and] serve a distinct compensatory function that may motivate injured persons to come forward with information.”
Drug cases are a great example of lawsuits performing their dual function: supplementing the government’s efforts to protect the public’s health and safety, and compensating those who are injured or the families of those killed. But drug cases are hardly the only example. Today, we have another poignant illustration.
As explained in a January 2011 complaint filed in a Massachusetts state court, on July 30, 2010,
“EnergyUSA negligently under-filled a new propane tank at the Norfolk [MA] condominium construction project, causing the chemical odorant which had been added to propane to fade. This made the leaking propane gas odorless and undetectable. … [Then] Smolinsky Plumbing and Heating carelessly failed to tighten a connection to the furnace, which led to the leak of the undetectable propane gas. The leaking propane gas caused [an] explosion.
[Electrician] William Nichols, age 46, was buried under burning debris for over 90 minutes before he was rescued by local firefighters.
What’s more, “During this time, he was crushed by smoldering debris, enveloped in noxious smoke and suffering with burns over 80 percent of his body. … Nichols pleaded with his rescuers to say goodbye to his fiancé and other family members. He was removed from the explosion site alive and died later that night of his injuries at Brigham and Women's Hospital in Boston.” Terrible.
Today, Massachusetts media are reporting that EnergyUSA Propane and Smolinsky Brothers Plumbing and Heating have settled with Billy Nichols’ family for $7.5 million. But just as importantly,
The explosion prompted state Fire Marshal Stephen Coan to lead a nationwide effort to improve safety regulations in the propane industry.
In a report, the fire marshal’s office found that a phenomenon known as “odor fade” occurs when the chemical that is added to give propane its distinctive “rotten eggs” smell fades over time. The report noted that this problem is particularly troublesome in new tanks, such as the one at the Norfolk condominium site.
In response, it is expected that the state will introduce new regulations this fall which will ensure better safety training for propane delivery personnel, as well as a requirement that newly-installed propane storage tanks get filled to the maximum liquid level to avoid the odorant fade problem that led to the explosion in this case.
In a statement released by [attorney Marc L.] Breakstone, the family of Nichols expressed appreciation that greater safety awareness in the propane industry to the dangers of unodorized gas will result from their lawsuit.
“It is our hope that our brother’s tragic death will lead to safety standards that may prevent other families from suffering the loss or injury of a loved-one due to a propane explosion,” Mark Nichols said.
Moreover, Norfolk Fire Chief Coleman Bushnell, who is helping to create new regulations, said “the work has expanded to the federal level ‘and we hope this incident will serve as testament to ensure for the public's safety.’” Writes the Boston Globe:
The pending regulations would require propane companies to regularly test gases three different ways to ensure that there are adequate levels of ethyl mercaptan, the odorant, at every stage of the process. Under the regulations, railroad cars would also have to pass the test before they could be unloaded in Massachusetts, and new tanks in the ground must be filled to 80 percent capacity within 48 hours, said Timothee Rodrique, the director of the division of fire safety within the state’s Executive Office of Public Safety and Security. …
A settlement between the Westfield facility and Attorney General Martha Coakley’s office enacted the proposed regulations at the facility while the investigation was still underway. The statewide regulations have been approved by the Board of Fire Prevention and are awaiting approval for a public hearing, which could come as early as September, Rodrique said.
The regulations would go into effect as soon as they are filed with the State Register, which would be about a month after the public hearing, Rodrique said. Among the regulations is mandatory training for anyone handling propane — including gas grill owners, who would face about 30 minutes of instruction.
“This will make it much safer for millions of grill owners in Massachusetts and the firefighters,” [Fire Marshal Stephen] Coan said. “So they will definitely smell propane when there is a leak.”
Two other individuals who survived the blast with permanent injuries “settled last week for a total of $22.5 million.” As Norfolk Fire Chief Coleman Bushnell put it:
It is nearly perfect symmetry that the suits involving the Mr. Nichols and the two most seriously injured took place almost two years from the incident. The "wheels of justice" turned true for the soul of the deceased and for the future of the living.
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