For Immediate Release: June 26, 1997
For More Information Contact: TLPJ, 202-797-8600
Robert Coleman, 312-444-1000
Michael Coffield, 312-444-9696
Defending both the First Amendment and the public's right to know, Trial Lawyers for Public Justice (TLPJ) filed a motion today to dismiss a defamation lawsuit filed by State Industries, Inc., a Tennessee gas water heater manufacturer, against Joseph Fandey, a retired project manager for the U.S. Consumer Product Safety Commission (CPSC). The lawsuit, State Industries, Inc. v. Fandey, filed in Illinois state court in Chicago on March 13, 1997, seeks more than $50,000 in damages from Fandey for opinions he expressed on ABC's weekly news program, PrimeTime Live -- even though neither Fandey nor the show mentioned the company.
The PrimeTime Live broadcast included a segment entitled, "Unsafe at Home," a report of television journalist Chris Wallace's investigation of fire accidents caused by gas water heaters, the industry's reaction to the resulting deaths and injuries, and the industry's failure to effectuate a simple, cheap solution. During the broadcast, Fandey, who now lives in New Mexico and testifies as an expert witness against water heater manufacturers, said, "Economically, it made sense to them to let these kids burn up and take their chances in court." He never named or referred to State Industries during the program, nor did Wallace. State Industries, one of many water heater manufacturers, nevertheless sued Fandey, but not Wallace or ABC.
"This is an outrageous attempt to use a defamation lawsuit to silence a critic and stop the public from learning about serious threats to its safety," said TLPJ Foundation President William E. Snead of Albuquerque, New Mexico. "State Industries should be spending its resources trying to prevent the deaths and injuries caused by the serious problem Joe Fandey helped expose, not suing Joe Fandey for bringing the problem to light."
Lawsuits filed to intimidate critics into silence are known as "SLAPP" suits. The term, coined by University of Denver professors George Pring and Penelope Canan, stands for "Strategic Lawsuits Against Public Participation." SLAPP suits are legally questionable or meritless lawsuits aimed at punishing people for exercising their right, guaranteed by the First Amendment to the Constitution, to participate in public discourse. SLAPP suits come in many shapes and sizes, but are often brought by powerful corporations in the form of libel or defamation cases -- claims that the corporate reputation has been harmed by allegedly false accusations.
TLPJ has moved to dismiss State Industries' lawsuit on the ground that Fandey did not mention State Industries in his allegedly defamatory remarks and could not reasonably have been understood to be directing his remarks at State Industries. TLPJ also argues that Fandey's statements are not actionable because they are pure opinion relating to matters of public concern and are fully protected by the First Amendment.
"This is a SLAPP suit, pure and simple," said Snead. "The fact that State Industries did not sue ABC, coupled with its decision to file suit in Illinois, demonstrates that the company is more interested in harassing and intimidating Mr. Fandey than in actually recovering damages."
Joseph Fandey worked for the CPSC for about 20 years and became the project manager for its gas-fired residential water heater project in the early 1990s. He investigated actions the CPSC could take to reduce the risk of flammable vapors igniting. There are approximately 2,000 fires a year in which gas water heaters ignite flammable vapors and there is almost one serious injury or death every day from these fires and explosions. The fires often start after a common household product like gasoline, paint thinner, or some other cleaning solvent is spilled. The flammable vapors are heavier than air and tend to hug the floor and flow across it like a liquid. The fumes, which can travel long distances, get sucked into the air intake of the water heater's pilot light and burner, and then burst into flames. The injuries, often to children, can be devastating.
A simple solution to the problem has been identified -- raise the water heater 18 inches off the floor. This moves the flame away from the ground-hugging vapors and would prevent most ignitions. In 1992, the CPSC asked the manufacturers to change the design of the water heaters to incorporate this solution. The manufacturers still have not followed the CPSC's recommendation.
Circuit Court Judge Kathy M. Flanagan will hear TLPJ's motion to dismiss after State Industries has had an opportunity to respond. Attorneys Robert F. Coleman and Kenneth Ross of Chicago's Robert F. Coleman & Associates; Michael Coffield and Christopher Kendall of Chicago's Michael W. Coffield & Associates; and TLPJ's Arthur Bryant and F. Paul Bland are co-counsel for Fandey.