Household Drain Opener Chemical Accident (2009 Fall Winter Newsletter)
Case Synopsis: Plaintiff was a female parent using a household drain opener chemical, 100% sodium hydroxide (“lye”, ” caustic soda”), in an attempt to unclog her bathroom sink drain. Unexpectedly, the contents of the drain were disgorged upward with force and onto the face and eyes of the user and a young daughter standing nearby. Both sustained tissue damage to the face and eyes from chemical burns, with resulting visual impairment. Counsel for the defendant manufacturer retained an expert in human factors and product safety to review issues of on-product labels, warnings, and instructions addressed to the purchaser, consumer, and user of the product.
Expert Analysis: In a written report, defense expert noted that the plaintiff’s “causes of action” cited the product for failure to comply with the Federal Hazardous Substances Act and Poison Prevention Packaging Act (which dates back to the 1970’s) without acknowledging that these acts later were subsumed under CFR, Title 16, Commercial Practices, Ch. II, Consumer Product Safety Commission. Defense expert then proceeded to cite specific sections of the current, relevant 16CFR in support of his opinion that the product was in full compliance with recommended safe practices relative to on-product warnings, instructions, and packaging. In his report, plaintiff’s expert cited a Material Safety Data Sheet mandating use of “close fitting chemical safety goggles with face shield” without noting that the relevant industry standard (ANSI Z-400.1) is applicable to chemicals used under occupational conditions, (and thus is not applicable to consumer products). The same expert also made numerous references to “proposals” for listing sodium hydroxide as a “banned hazardous substance” — without noting that, in accordance with special packaging provisions of the federal standard, it is exempted from such classification. Finally, defense expert noted that plaintiff’s expert’s citation of injury “cases” attributed to drain cleaner use was not valid insofar as the data cited were derived from a sample of hospitals and are merely estimates (National Electronic Injury Surveillance System). Further, the data does not delineate severity of injury and body part involved (such as tissue damage to the face and eyes).
Result: Case settled prior to trial.