IN THE SUPREME COURT OF OHIO

HAYWARD POOL PRODUCTS,INC.

Appellant,

V.

ROBERT HERTZFELD, et al.,

Appellees.

Case No. 2oo8-0358

On Appeal from the LucasCounty Court of Appeals,Sixth Appellate District

Court of Appeals Case No. CL-o7-1i68

MEMORANDUM IN OPPOSITION TO JURISDICITON OF APPELLEESROBERT HERTZFELD, ET AL.

*

Jay Harris (0017237)HARRIS•RENY•TORZEWSKI L.P.A.Two Maritime PlazaThird FloorToledo, OH 43604(419) 243-1105FAX: (419) 243-8953e-mail: toledojustice0bex.net

Robert A. Bunda (0019775)Barbara E. Machin (oo16468)BUNDA STUTZ & DEWITT, PLL3295 Levis Commons Blvd.Perrysburg, OH 43551(419) 241-2777FAX: (419) 241-4697e-mail: rabundaobsd-law.combemachinCa)bsd-law.com

Counsel for Appellees Robert andMary Hertzfeld

Counsel for Appellant HaywarPool Pro

^,LERK OF COURTSUPREIVIE COURT OF OHIO

TABLE OF CONTENTS

PAGES

THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST.......... 1

The Law That Applies To This Case Has BeenSuperceded And Is Not Of Great General Interest .................................. 1

The Trial Court's Summary Judgment OpinionWas Factually And Legally Erroneous And WasProperly Reversed ...................................................................................... 1

The Trial Court Clearly Did Act Arbitrarily AndAbused Its Discretion In Excluding The Ohio StateUniversity Trained, Experienced Mechanical EngineerUnder The Facts In This Case .................................................................... i

STATEMENT OF THE CASE ........................................................................... 3

FACTS .................................................................................................................. 4

The Defendant Manufacturer Knows That TheChlorine Feeder Cap Is Difficult To RemoveUnder Pressure ........................................................................................... 4

The Defendant Manufacturer Knows That Tri-ChloroChlorine Tablets And Water "Off-Gas" Chlorine Gas .............................. 5

The Defendant Manufacturer Knows Of Two SaferFeasible Alternative Designs ..................................................................... 6

The Defendant Manufacturer Knows That It's TestingOf The Injury Chlorine Feeder Did Not Meet The MinimumVoluntary Consensus Standard ANSI/NSF50Requirement Of 75 PSI By Water .............................................................. 6

The Defendant Manufacturer Failed To Incorporate TheTwo Feasible Safer Alternative Designs .................................................... 7

The Defendant Manufacturer Failed To Warn On TheProduct Of The Hazard Of Improper Winter Storage ............................. 8

Mary And Robert Hertzfeld Were Injured In AForeseeable Explosion .................. ............................................................. 8

i

TABLE OF CONTENTSPage 2

Defendant's Engineer Had No Clue .......................................................... 9

PlaintifPs Expert Robert Yano, P.E ...............................................:........... 10

ARGUMENT ........................................................................................................ 12

Proposition of Law No. I ............................................................................ 12

Proposition of Law No. II ........................................................................... 12

Proposition of Law No. III ......................................................................... 13

CONCLUSION ..................................................................................................... 14

ii

THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST

The Law That Applies To This Case Has Been Superceded and IsNot of Great General Interest I

This case involves law that has now been superceded by the riew tort deform laws

enacted after the dates relevant to this lawsuit. The defective product was designed in

1984 and exploded in 2003. The legislature's attempted deform of tort law was effective

April 7, 2005. This case does not have applicability that is of general interest. The

situation here is specific to the facts in this case.

The Trial Court's Summary Judcament Opinion Was Factually AndLegally Erroneous And Was Properly Reversed

The actual facts in this case show that the trial court committed egregious error

rising to the level of travesty. The trial court was dead wrong and showed a clear abuse

of discretion. The statements of the Defendant-Appellant in its memorandum are

simply not supported by the actual evidence in this case.

The Trial Court Clearly Did Act Arbitrarily And Abused Its Discretion In ExcludinaThe Ohio State University Trained, Experienced Mechanical Engineer Under TheFacts In This Case

Robert Yano earned a Bachelor of Science in Mechanical Engineering at The Ohio

State University. Mr. Yano earned his Master's Degree in Mechanical Engineering from

The Ohio State University. Engineer Yano completed all of the course work for an OSU

Doctorate Degree in Mechanical Engineering.

1

Mr. Yano was employed as an engineer by Ohio Corporations for thirty (30)

years. He was an engineer in rocket science. He designed pressure system safety

devices and controls which experience is directly applicable to the safe design of the

defective exploding pool chlorinator in this case.

The defective product in fact violated the National Standard. Defendant-

Appellant's own test showed that this explosion was bound to happen sooner or later.

Defendant-Appellant's own patent showed that this problem was to be anticipated and

proper safety devices used to prevent injury to consumers.

2

STATEMENT OF THE CASE

The Defendant-Appellant Hayward Pool Products, Inc. designed a swimming

pool chlorine feeder without the safety device of a safety pressure 'relief valve or a

dedicated cover-opening tool. The manufacturer designed the chlorinator without any

warning of the hazard of sealing and storing the chlorine feeder for the winter.

In the spring, the chlorine feeder cap under pressure exploded propelling the top

half of the cap off like shrapnel and seriously injuring Plaintiffs Mary and Robert

Hertzfeld. Mary and Robert Hertzfeld filed their Complaint on April 4, 2005 in the

Lucas County Court of Common Pleas.

The Complaint contained five counts:

1. Breach of the implied warranty of safety

2. Strict liability in tort

5.

3. Negligence in design and testing of the chlorine feeder,negligent failure to provide necessary safety devices withthe chlorine feeder and negligent failure to warn of thehazard which the Defendant Manufacturer knew or shouldhave known. '

4. Statutory Product Liability in design and warning R.C.2307.71 et seq.

Exemplary/punitive damages pursuant toLeichtamer v. American Motors Corp. (i98i), 67 OhioSt.2d 456, Syllabus No. 3; Preston v. Murty (1987), 32Ohio St.3d 334, Syllabus.

3

FACTS

The Defendant Manufacturer Knows That The Chlorine Feeder Cap Is Difficult ToRemove Under Pressure

The Defendant Hayward Pool Products, Inc. (HPPI) designed the injury chlorine

feeder in 1984. The chlorinator is a fluid containing housing with a screw on cover cap.

Defendant HPPI applied for a United States Patent for this chlorinator on July

20, 1984. Patent No. 4,617,117 was granted to HPPI and the patent number is embossed

on the injury chlorine feeder cover cap.

The Defendant Manufacturer's description in the patent said:

"Housings for fluids commonly iequire a cover that isremoveably attached to the housing, to provide access toa fluid chamber in the housing. Such a cover has to besealed to the housing in a fluid-tight seat that can ifrequired withstand high internal fluid pressures, up toabout 2000 psig or more. Such covers are...difficult toremove from the housing when such access is required....

Often...due to the tight engagement between the partsof the assembly and the expansion of the sealingmembers caused by the internal pressure of thesystem, it is extremely difficult to remove the coverfrom the housing. It is necessary to employ wrenchesand hammers to break the tight seal between the,housing and the cover."

U.S. Patent No. 4,617,117.

Defendant HPPI recognized in 1984 that this chlorinator design would need a

dedicated cover opening tool to ensure that the cap could be removed by a consumer in

foreseeable use of the product.

"In accordance with the present invention, a housingassembly for fluids is provided, having a coverremovably attached to the housing...the jack ring is

4

threadably attached to the outside of the housing andis in the form of a cap or outer cover.... The exterior ofthe jack ring can be shaped for rotation...by a tool...."

U.S. Patent No. 4,617,117.

The Defendant Manufacturer Knows That Tri-Chloro Chlorine Tablets And Water"Off-Gas" Chlorine Gas

The Defendant HPPI designed the injury chlorine feeder to use Trichloro-S-

Triazinetrione (Tri-Chloro) Tablets. Defendant HPPI lmows that Tri-Chloro Tablets and

water give off chlorine gas. It is this chemical reaction that sanitizes the swimming pool

water.

Defendant HPPI knows that if Tri-Chloro Tablets and water are placed in a sealed

chlorine feeder that the internal pressure will build up over time. This is due to the

expected chemical reaction between the tablets and water that "off gas" chlorine gas.

How does Defendant HPPI know this happens? Because that's what it is designed

to do - and because Defendant HPPI did test #0-399-04 on October 4, 2000.

This test put Trichloro Tablets in the chlorinator with water and closed the cover

cap and sealed the inlet and outlet ports. This was now a sealed up chlorine feeder with

wet Trichloro Tablets inside.

The Defendant's test results showed that the internal pressure continued to

increase over time. The internal pressure increased from zero to 74 psi over i6 days. The

test was stopped before it reached 75 psi.

5

Defendant HPPI's own test showed that when the chlorinator was sealed with wet

chlorine tablets inside, that the internal pressure increased every day for 13 days straight.

This means that if the chlorinator was put away for winter storage in this way, the

consumer would not know that it had become a pressurized container akin to a bomb

waiting to explode.

The Defendant Manufacturer Knows Of Two Safer Feasible Alternative Designs

To make the cap opening substantially easier, the manufacturer can provide a

dedicated cover-opening tool. Defendant HPPI itself does this with models C25o CF,

C5oo CF, Ciioo CF, Ci8oo CF and C2400 CF. Other chlorinator manufacturers also

address the difficult to open cap problem with a dedicated cover- opening tool.

To relieve the build up pressure before attempting to open the chlorinator, at least

two manufacturers provide a safety relief valve. This safety device gets rid of excess

pressure inside the chlorinator before the cap is opened. "Pressure Relief Valve offers

safety feature against built-up pressure." "Vent Valve bleeds air to ease lid removal."

Both of these safety devices were in existence and proven before the injury chlorine

feeder was manufactured in 2ooi. Either of these safety devices would have prevented

the injuries to Mary and Robert Hertzfeld on June 1, 2003.

The Defendant Manufacturer Knows That It's Testing Of The Iniurv ChlorineFeeder Did Not Meet The Minimum Voluntary Consensus Standard ANSI/NSF50Requirement Of 75 PSI By Water

ANSI/NSF50 is a voluntary minimum consensus standard promulgated by the

product manufacturer supported group the NSF. ANSI/NSF5o by its terms is not a

6

safety standard. The standard does not deal with safety devices for chlorinators. The

standard does not cover the content of product safety signs. Nor does the standard apply

to winter storage of chlorine feeders.

What the standard does require is that the Defendant HPPI's chemical feeders be

tested to withstand 75 psi of water pressure for 5 minutes.

Defendant HPPI admits that it tested the injury chlorine feeder to only 35 psi with

air, not water, pressure. None of the Defendant HPPI's chlorine feeders are tested on the

assembly line to meet even the minimum requirement of withstanding 75 psi water

pressure for 5 minutes. HPPI's product testing is only 35 psi with air for a second.

It is a fact - the injury chlorine feeder did not meet even the minimum hydrostatic

pressure requirements of the voluntary consensus standard by its own admission.

The Defendant Manufacturer Failed To Incorporate The Two Feasible SaferAlternative Designs

Defendant HPPI did not use the dedicated cover-opening tool for the injury

chlorine feeder even though it did for its sister models. Defendant HPPI did not

incorporate a safety relief valve in the injury chlorine feeder. This is in spite of the

evidence that at least two other chlorine feeder manufacturers do use the safety relief

valve as a safety device. Either safety device would have avoided the consumer being

forced to resort to whacking the cover with a hammer.

7

The Defendant Manufacturer Failed To Warn On The Product Of The Hazard OfImproper Winter Storage

There was absolutely no warning on the injury chlorine feeder of the hazaid of

closing the top and sealing the ports and storing the chlorine feeder for the winter. There

was no warning at all.

Plaintiffs Mary and Robert Hertzfeld did not know how dangerous the storage of

the chlorine feeder could be. Neither Mary nor Robert ever saw any written instructions.

Even had the written instructions been available it would not have been helpful anyway

because there is no warning of the explosion hazard of storing the chlorine feeder for the

winter in a sealed up condition.

Mary And Robert Hertzfeld Were Iniured In A Foreseeable Explosion

The injury incident occurred while Mary and Robert Hertzfeld were attempting to

remove the cover from a Hayward Automatic Chlorine Feeder (Model CL220, Serial No.

34oJ31) on June 1, 2003. During that attempt, the chlorinator exploded like a bomb,

severely injuring both Robert and Mary.

Mary Hertzfeld purchased a Hayward Automatic Chlorine Feeder Model CL220.

This was to disinfect the swimming pool water. She always used, and only used, the slow

release tablets, Trichloro-S-Trizinetrione, recommended by Defendant HPPI.

In the winter, Mary stored the automatic chlorine feeder in the garage. Because

Mary did not want chlorine gas in the garage, she tightly closed the screw-on cover and

connected the water inlet and outlet with a single piece of plastic tubing.

8

On June 1, 2003, the Hayward Automatic Chlorine Feeder exploded like a

bomb. The explosive force fractured the plastic screw-on cover, which became a

projectile that caused serious injury to both Mary and Robert. The explosion

occurred when Mary attempted to open the screw-on cover of the feeder.

The cover was stuclc and Mary asked her husband Robert to help. Robert held

the bottom of the canister and the unlock tab, while Mary tried to unscrew the cover.

A number of attempts proved unsuccessful. Mary got a hammer and covered the cap

with a t-shirt to prevent marring while Robert held the chlorinator canister and

unlock tab. Mary tapped the cover once and the cover immediately exploded.

Even though Mary had cleaned out and rinsed out the chlorine feeder before

storage, there remained calced chlorine tablets sealed to the bottom. It looked like

caked clothes washing detergent. Mary thought this was inactive binder residue.

Unknown to her, it wasn't.

Just as the chlorine tablets were designed to, they "off gas" all winter long. Just

like Defendant HPPI Test No. 0-399-04 had shown, the pressure built up all winter.

In the spring, the chlorine feeder was a high-pressure bomb waiting to explode.

A tap on the cap was all that was necessary.

As Mary Hertzfeld said: "I didn't know the feeder would be dangerous."

Defendant's Engineer Had No Clue

Defendant HPPI was asked to produce the person most knowledgeable about

the design of the injury chlorine feeder. Defendant produced Douglas Philhower, an

employee of the Defendant.

9

Mr. Philhower had never designed any product. Mr. Philhower did not know

the fundamental cannon of engineering ethics. Mr. Philhdwer did not know that

there were industry voluntary consensus standards that applied to the pressure

testing of the chlorine feeder. Mr. Philhower did not know that the injury chlorine

feeder was designed in 1984 as shown in Patent No. 4,617,117. Mr. Philhower did not

know that the patent number was embossed on the cap of the injury chlorine feeder.

Mr. Philhower did admit that the Defendant HPPI violated the ANSI/NSF 50

Standard by only testing each chlorine feeder to 35 psi air pressure when the standard

required testing to at least 75 psi with water pressure. Mr. Philhower admitted that

the Defendant had no product design manual, no product safety standard and no

product safety program. '

Plaintiff's Expert Robert Yano, P.E.

Robert Yano is a professional engineer of 36 years experience. He is a Master's

Degree Mechanical Engineer. He has completed all course work and examinations

toward his Ph.D. in Mechanical Engineering at The Ohio State University.

Mr. Yano has worked in industry for 30 years. This was work as a project

engineer, chief engineer and vice president of engineering at various manufacturing

and research corporations. He was involved in rocket science at the Northrop

Corporation.

As Mechanical Department Manager for Matrix Technologies, Inc., Mr. Yano

prepared detailed engineering packages, cost estimates, specifications and other

related engineering documents for chemical piping, valving and controls. He has

designed a pressurized fuel cell and its safety devices.

10

In the last six years, Mr. Yano has been asked to consult by Defendants and

Plaintiffs in litigation. He has experience in mechanical equipment evaluation,

analysis and testing to determine feasible safety devices. He has experience analyzing

water piping and chemical piping valving and controls.

Mr. Yano authored an engineer's report related to this case. Mr. Yano

examined the injury chlorine feeder. He did research on engineering information

that related to this injury incident.

Mr. Yano's opinions rest on his examination of the injury chlorine feeder, his

training and experience, the fact of two available feasible alternative designs, the

HPPI Patent No. 4,617,117, HPPI Test #0-399-04, and the fact of no on-product

warning of: 1. A high-pressure explosion resulting from storing a sealed-up feeder

containing wet caked chlorine over the winter; and 2. A high-pressure explosion

resulting from tapping on the stored sealed-up feeder, containing wet chlorine (and

now high-pressure chlorine gas), to unscrew the stuck cover-cap.

The expert's conclusion based on the evidence at hand is that the injury

chlorine feeder was defective in design and warning. The Defendant HPPI was

negligent in testing, design and failure to warn according to the Plaintiffs expert.

11

ARGUMENT

Proposition of Law No. I

The Ohio Supreme Court and other Ohio Courts have often held that the trial

court's exclusion of Plaintiff's expert witness is reversible error. Miller v. Bike

Athletic Co. (1998), 8o Ohio St.3d 607, 687 N.E.2d 735; Leffler v. MotoristMut. Ins.,

2002 WL479822 (Ohio App. loa' Dist.) 2002-Ohio-1457; Gartner v. Hemmer, 2002

WL727014 (Ohio App. ist Dist.) 2002-OH-2040.

Here, the trial court abused its discretion because it adopted clearly erroneous

facts and ignored the actual evidence in this case. Where the trial court adopts in toto

the Defendant's brief which contains glaring factual misstatements and erroneous

legal citations, the trial court has acted arbitrarily and has abused its discretion

resulting in manifest injustice.

Appellate Courts exist for the very purpose of preventing such trial court

injustice as is shown in this case. I

Proposition of Law No. II

This proposition of law is not supported by the facts in this case. Robert Yano

had specific expertise and experience with pressure systems,and with chemical supply

systems including valving and controls. All of the opinions were based upon the

evidence supplied by the Defendant Manufacturer in discovery.

This is simply not a toxic mold causation or chemica]ly caused cancer case.

Here, the evidence shows that the product was defectively designed under Ohio Law

in effect at the time of the 1984 design. There is no question that the defectively

designed pool chlorinator exploded injuring the Plaintiffs.

12

An Ohio State University trained mechanical engineer is well qualified when his

experience in industry for thirty (30) years deals capably with the engineering issues

involved in the case. The evidence shows that the Defendant knew that the

chlorinator would explode sooner or later. Two safety devices would have prevented

the serious injury to the Plaintiffs.

Proposition of Law No. III

This product was designed in 1984. At the time, the law of Ohio had been

announced by the Ohio Supreme Court in Knitz v. Minster Machine Co. (1982), 69

Ohio St.2d 460, 432 N.E.2d 814, cert. denied 459 U.S. 857 and Sealy v. G.D. Searle &

Company (1981), 67 Ohio St.2d 192, 423 N.E.2d 831. The evidence is that the

exploding chlorinator was defectively designed and also defective due to the total lack

of warning of a known hazard.

Senate Bill 8o (2004) was effective April 7, 2005, over one and a half years after

Plaintiffs Robert and Mary Hertzfeld were injured on June 1, 2003. Senate Bill 8o

includes the Ohio Legislature's attempt to overrule the Supreme Court's holdings that

recognized that the common law survives the enactment of the Ohio Product Liability

Act, §2307.71 to §2307.80 of the Revised Code. See R.C. §2307.71(D) effective

April 7, 2005. '

To an objective legal scholar, it is certain that this court wants to reconsider the

unconstitutionality of legislatively imposed caps on damages and the unconsti-

tutionality of a statute of repose. This case however is not the proper vehicle by which

to revisit these issues.

13

CONCLUSION

This case does not involve matters of public and great general interest. This

Court should not accept jurisdiction in this case.

Respectfully submitted,

HARRIS•RENY•TORZEWSKI, L.P.A.

By:ris

ounsel for Appellees Robertand Mary Hertzfeld

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Memorandum in Opposition to

Jurisdiction of Appellees Robert and Mary Hertzfeld has been sent this f4day of

March 20o8, by regular U.S. Mail to Robert Bunda, Esq. and Barbara E. Machin, Esq.,

BUNDA, STUTZ & DEWITT, P.L.L., One Seagate, Suite 65o, Toledo, OH 43604-1546,

Counsel for Appellee.

By:Harris

Counsel for Appellees Robert andMary Hertzfeld

14