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Breaking Legal Developments

01-02-2001

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Iowa Supreme Court Reverses Verdict for Defendant Gas Company Ordering New Trial Because of Tank Defect
  2. Iowa Court Affirms Incendiary Device Conviction Over Loss of Evidence Claim
  3. Connecticut Upholds Arson Murder Conviction Allowing Expert Testimony on Injuries Only Caused to Skin Burned Away


(1) IOWA SUPREME COURT REVERSES VERDICT FOR DEFENDANT GAS COMPANY ORDERING NEW TRIAL BECAUSE OF TANK DEFECT

In Weyerhaeuser Co. v. Thermogas Co., No. 98-2222, the Iowa Supreme Court reviewed a defense verdict after a trial related to a liquid propane tank explosion. Plaintiff operated a cardboard box factory. An employee was being instructed on use of a forklift. He was told to drive around. He ran out of gas. After he replaced the tank with help of another, he was told to proceed. He drove but forgot to unlatch the brake. Another employee smelled something. When the driver got out of the truck he saw a thin white smoke from the engine area. Flames broke out and the employees fled.

The tank exploded the fire ignited the rolls of papers and boxes. 5.8 million dollars in property damage happened. Suit was filed against Thermogas, a sprinkler company, and the truck manufacturer. The allegations included a claim the tank exploded prematurely, the sprinkler system did not operate and the truck was defective. The jury found the plant 70% at fault, Black Hawk 5% and the gas company 20% at fault. The plaintiff moved for a new trial.

Federal regulations require LP tanks not to explode when placed in a fire. The tank had early testing which an expert indicated suggested something happened to the tank in question. The expert testified under the circumstances and the premature explosion there must have been a defect.

In the district, the court did not find assembler liability for the gas company. The Iowa Supreme Court disagreed finding the container and the tank could not be logically separated from the contents the liquid propane when placed in the stream of commerce. The court held Thermogas combined a defective component part-its tank-with its liquid propane making a strict liability claim viable.

Circumstantial evidence can be used to prove a product defect. The court reversed on these and other grounds for a new trial.


(2) IOWA COURT AFFIRMS INCENDIARY DEVICE CONVICTION OVER LOSS OF EVIDENCE CLAIM

In Bogdan v. State of Iowa, No. 98-2171, the defendant attacked his conviction for possession of explosive or incendiary device. The defendant repaired old salvaged vehicles. He was told some kids had taken items. He went to the house and accused them of breaking into his yard. He took a plastic bag blown up like a balloon and put it on the pavement. He lit a gasoline trailer and a violent explosion occurred breaking a window, setting off an alarm and causing hearing loss.

Investigators found a black streak on the street and remains of the bag. Tests indicated the bag had oxygen and acetylene. After a search of his residence, gas cans, plastic bags and acetylene were found. He was convicted after a jury trial.

His claim that a tape-recorded interview which was lost by the Sheriff's Office. That error was not preserved on his first appeal. Because this was a post conviction relief proceeding it could not be raised for the first time now. His conviction was affirmed.


(3) CONNECTICUT UPHOLDS ARSON MURDER CONVICTION ALLOWING EXPERT TESTIMONY ON INJURIES ONLY CAUSED TO SKIN BURNED AWAY

In State v. Wargo, No. 16186, the Supreme Court of Connecticut, reviewed the defendant's arson and murder convictions. On appeal the defendant argued the prosecutor's expert witness should not have been allowed to offer testimony on injuries caused to skin burned away when she could not determine the cause of death or manner she died.

A fire happened at the decedent's home. The defendant ensured his two children escaped but his wife was found burned beyond recognition in the den. First when asked about his wife's whereabouts he denied knowing where she was. Later he admitted she was in the den. The fire fighters found her dead in the den. The cause and origin investigator discovered a pour pattern in the den. He also retrieved pursuant to a warrant an empty bottle of bleach, and a can of acetone. Smoke detectors were examined and found not to have been working at the time of the fire.

At trial the state offered medical testimony. The body was so badly burned that victim could be identified by dental records only. The skin was so badly burned it could not be examined. Inspection of the lungs and organs indicated she died prior to the fire based on a lack of soot and other indicators. The exact cause of death or manner how she died could not be identified. The prosecution then asked about traumatic causes of death that manifest only on the skin which was burned away. The defense objected claiming since the cause of death and manner was not known the testimony was utter speculation by the expert. The testimony offered in that area was electrocution or drug overdose.

The court permitted the testimony noting it was relevant to demonstrate, because the skin had been destroyed by the fire, there were several possible causes of death that she could not rule out which would have been consistent with an intentional killing. The convictions were upheld.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com, emergency loss assistance - pager (619) 333-2713.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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