THE BLUE SHEET

Products/Aerodynamic Design Defect – festive missile took off at

eye level after lighting – loss of left eye – settled for

$2,100,000 and missile taken off the market, Bexar County

STYLE:                                                    Teresa D. Hinojosa v. Alamo Fireworks, Inc., et al

                                                                 No. 96-CI-12941

PLAINTIFF’S ATTORNEY:                   Daniel J.T. Sciano of Tinsman & Houser, Inc., San Antonio

DEFENSE ATTORNEYS:                     Eric Scott Levy of Gardere & Wynne, Dallas (Phoenix & O.K. Fireworks)

                                                                  Mark Brewster of Sparr & Associates, San Antonio (Pyro-Tech & Atlas)

                                                                  Gregg William Knaupe of Lea & Chamberlain (Po Sign)

                                                                  Robin Baird of Cherry, Davis, Harrison, Williams & Baird, Waco (U.S.)

TYPE OF CLAIM:                                    Product Liability/Aerodynamic Design Defect/Negligence/Gross Negligence/Bystander

On 12-31-95, while celebrating the coming of the New Year, Teresa Hinojosa, 32, placed a Phoenix Flyer with star missile on plywood and made sure the missile was stable, per the instructions.  As she walked a few feet away, she turned to look at the missile.  The missile had elevated about five feet, turned, and went straight toward her face at extreme speed striking her in the left eye.

Plaintiff alleged Defendant manufacturer, Phoenix Fireworks and O.K. Fireworks Corporation, were negligent in the design of the rocket; that it had insufficient initial thrust and that is why it traveled with erratic trajectory and in a hazardous manner ultimately hitting the Plaintiff in the left eye.  Plaintiff claimed the rocket had no stabilization system and should have been designed and manufactured with a launch rod.  Additionally, Plaintiff obtained evidence that the missile had failed CPSC requirements because of a long burn time.  The other Defendants were sued because they all were involved in the stream of commerce (Po Sing was the motor manufacturer).

Plaintiff obtained American Fireworks Standards Laboratory (AFSL) testing done two years before, the results of which indicated the Phoenix Flyer with star failed the AFSL requirements because of trajectory problems.  That same report dated 03-29-93 read, “As they are now, these items are pretty scary because too many of them take off at eye level and are much too fast to avoid at any reasonable distance.”

The Defendants claimed there was nothing inherently dangerous in the design of the rocket and insisted that by nature, fireworks are a potential hazard insisting that people are aware of the potential for danger and assume a portion of the risk.  Pyro-Tech, the assembler of the product, claimed when it tested the missile, no problems were revealed.

DAMAGES:                                              Plaintiff  had seven surgeries in attempts to save her left eye, but to no avail. She claimed past and future pain and suffering, mental anguish, and disfigurement.

EXPERTS:                 Plaintiffs             Mark Grubelich of Sandia Lab, rocket science, Albuquerque, NM, re rocket

                                                              Thomas Priddy, Ph.D., Professor at UT, formerly with Sandia Laboratory, rocket science, Austin, re trajectory

                                                                 Clayton Schneider, consumer fireworks manufacturing, New York, NY

                                                                Arthur Fisk, Ph.D., specialist in human factors and warnings, Atlanta, GA

                                   Defendants         Unknown

VERDICT:                                              Case settled for $2,100,000.  As part of the settlement conditions, the parties agreed that the product would be forever removed from the marketplace.  All retailers, manufacturers, and distributing stands were notified of a recall on all Phoenix Flyer with star missiles.

                                                                 An Agreed Final Take Nothing Judgment was entered April 9, 1999.

SIDELIGHTS:                                        Pyro-Tech was not insured for the year this accident happened.  Phoenix and O.K. Fireworks agreed to indemnify Pyro-Tech so long as Pyro-Tech had no independent negligence that was the cause of the occurrence.

                                                                This case was investigated and filed prior to a similar case in Tarrant County.

                                                                   In late 1998, the product was recalled from the marketplace.

                                                                 A case which closely resembles the fact scenario in this case was settled for $2,250,000 in Tarrant County.  Report in The Blue Sheet of Northeast Texas, Volume III, Issue 10, page 20, dtd 5-17-99.