Carbon monoxide (“CO”) poisoning is a major health problem in the United States, resulting in thousands of injuries—including permanent brain damage—and hundreds of deaths each year. Many, if not most, of these injuries and deaths could be avoided by responsible industry behavior—including by using reasonable safeguards, like CO detectors, and by properly designing and manufacturing products to minimize the risk of harmful CO exposure. However, the industry has largely failed to act, and government “watchdogs” have done little to address the situation. As a result, CO injuries and deaths will continue, and the victims will need dedicated and persistent advocates to obtain the care and compensation required to put their lives back together.
This article will examine and explain the CO poisoning phenomenon, will explore the most common causes of action, and will conclude by analyzing the many obstacles and complexities in bringing a CO case.
I. CO Poisoning is Surprisingly Common and Cannot be “Cured”
CO is known as the “silent killer” because it is a highly poisonous gas that is tasteless, colorless, odorless, and non-irritating. When CO enters the body, it binds to hemoglobin in red blood cells, essentially replacing oxygen in the bloodstream. The CO is then transported throughout the body, starving tissues and organs—including, commonly, the brain and heart—of oxygen.
Each year, an estimated 27,500 individuals suffer a non-fatal injury as a result of CO poisoning, while an additional 439 are killed. As a result, conservative estimates peg the annual, recurring societal cost of accidental CO poisoning at more than $1.3 billion dollars in medical expenses and lost wages. The costs associated with CO poisoning are high both because of the severe nature of the injuries—with brain damage being the most commonly reported condition associated with CO poisoning—and because most individuals suffering from CO poisoning are between the ages of 15 and 44. As such, “cognitive dysfunction or death affecting ability to work may impact earning potential for decades . . . .”
The symptoms and signs of CO poisoning vary depending upon the ambient CO level, the duration of the exposure, the size and weight of the individual, and whether the individual is suffering from any chronic conditions. Symptoms vary widely, and can include: headaches, dizziness, fatigue, nausea, vomiting, confusion, blurred and spotted vision, loss of consciousness, reduced muscle coordination and balance, tremors, hallucinations, chest pain, cognitive deficits and neurological deficits like dementia psychosis, amnesia, and difficulty speaking.
Sadly, CO poisoning is commonly overlooked or misdiagnosed. Many physicians are simply not familiar with CO poisoning, and as such, are often not able to identify when someone is suffering from acute or long-term effects of CO. Further compounding the problem is the fact that the patient themselves often do not recognize their own symptoms, and can easily mistake the symptoms for another condition, like the flu.
Even when properly diagnosed, there is no “cure” for CO related brain injuries and their associated symptoms. The best medical professionals can do is to prescribe and provide treatment aimed at reducing the impact of the symptoms and helping patients cope with their disabilities. The treatment protocols typically include cognitive and vocational rehabilitation. Additionally, hyperbaric oxygen therapy is often recommended for acute CO poisoning, but this protocol remains controversial.
II. The Causes of Action and Defendants in CO Cases
Fuel-burning cars, household appliances, and business operations regularly discharge toxic CO-laden fumes into the air we breathe. As a result, CO poisoning can happen in many different ways and be caused by many different sources. Depending on the type of exposure at issue, an injured consumer may be able to pursue a variety of different legal theories. This section will analyze and highlight some of the more common claims pursued in CO cases.
A. Premises Liability
Premises liability and related negligence theories are perhaps the most frequently invoked causes of action in CO cases. The first step in any CO case is establishing the source of the carbon monoxide. Oftentimes the source is the boiler or furnace, but can also be a gas stove, unvented gas or kerosene space heaters, clothes dryers, fireplaces, or improperly vented appliances. Depending on the cause and location of exposure, the defendants in such cases can include property owners, property management companies, hotels, motels, restaurants, and other business, in addition to HVAC and appliance repair providers.
As a property owner, it is imperative that preventative maintenance and inspections be performed to properly maintain the property and identify possible signs of CO problems. The failure to do so can often constitute a breach of the applicable duty of care. In most jurisdictions this duty is non-delegable, meaning that the owner of the property cannot absolve itself of responsibility by contracting out the performance of that duty.
Duties can also arise out of various codes, including state building codes, the International Fire Code, the International Building Code, the International Code Council, the International Mechanical Code, and the International Residential Code, various standards, including ANSI (American National Standards) NEMA (National Electrical Manufacturers Association), and statutes.
Because one of the best safeguards against CO poisoning is a CO alarm, the failure to install a carbon monoxide detector can also provide a key element to a negligence claim. As of January 2017, thirty-two (32) states have enacted statutes regarding CO detectors, and another eleven (11) have promulgated regulations on CO detectors. Twenty-seven (27) states and the district of Columbia have enacted statutes requiring carbon monoxide detectors in private dwellings via state statute while eleven (11) states require carbon monoxide detectors in private dwellings. Surprisingly, only California, Connecticut, Illinois, Maine and Maryland require carbon monoxide detectors in school buildings and only thirteen states require installation of carbon monoxide detectors in hotels and motels under statute.
B. Keyless Ignition Cases
There has been a sharp increase in product liability CO cases involving automobiles over the past several years. This increase is due in large part to the advent of keyless ignition systems. While push-to-start features and so-called “smartkeys” were touted as technological improvements, they also created a new hazard: vehicles being inadvertently left on after the driver exits the vehicle. When this happens, a car may be left running overnight in a garage, spewing out toxic CO-ridden exhaust, which can then migrate into the house and poison the family members inside. Since their introduction into the marketplace, keyless ignition systems have been connected to at least 20 deaths and 45 severe injuries and illnesses. And those are just the ones that have been reported—formal statistics are not compiled on this issue, so the real numbers are possibly much higher.
The fundamental problem with many push-button ignition systems is that they do not account for basic human factors principles. While the driver must have the key fob on or nearby to start the car, the fob can be taken away from the vehicle without the vehicle shutting off. This has proven to be a recipe for disaster—so much so that the National Highway Traffic Safety Administration (“NHTSA”) previously called keyless ignition systems “a clear safety problem,” and even launched a probe into the issue. Unfortunately, as is too often the case, the agency unceremoniously ended the probe behind closed doors, failing to take any action to protect consumers.
Sadly, NHTSA’s failure to take action means that automakers will continue to push keyless ignition systems out onto the market without incorporating critical safety features needed to prevent CO poisoning injuries and deaths.
C. Ford Explorers
In July 2016, NHTSA’s Office of Defects of Investigation (“ODI”) opened a Preliminary Evaluation (“PE”) into reports of exhaust odors in the occupant compartments of 2011 – 2015 Explorers. At the time NHTSA had received 154 consumer complaints. Despite issuing three separate Technical Service Bulletin’s (TSB) to help guide technicians with procedures to address this problem, these numbers have steadily risen. Indeed, Ford has reported fielding over 2000 reports, while 791 consumers complained to NHTSA’s Vehicle Owner’s Questionnaire hotline.
By late July 2017, ODI upgraded the investigation into an Engineering Analysis (EA). However, while the upgrade to an EA may seem like a step in the right direction, there remain significant causes for concern as NHTSA appears to be adopting the Ford talking points. Case in point, the agency recently stated that: “To date, no substantive data or actual evidence (such as a carboxyhemoglobin measurement) has been obtained supporting a claim that any of the alleged injury or crash allegations were the result of carbon monoxide poisoning, the alleged hazard.” Moreover, despite the defect’s high profile and significant potential for injury, ODI has been less than forthcoming with the findings of its investigation and Ford’s response to the PE. This apparent unwillingness to share information with the public lends credence to concerns that NHTSA may end up simply opening and closing its investigation without taking meaningful action to protect consumers.
At the same time, Ford’s Police Interceptor Utility Vehicles—which are modified Explorers designed to handle high-speed chases and other situations and are used by police departments across the country—have also been connected to exhaust-related illnesses and multiple crashes. Examples of such reports include:
• In August 2017, an officer reportedly “lost consciousness at the wheel . . . and struck a civilian’s vehicle in Massachusetts;”
• In July 2017, the Austin Police Department pulled “nearly 400” Interceptors out of service after “more than 60 officers . . . reported health problems,” and “more than 20 were found to have measurable carbon monoxide in their systems;”
• In September 2015, a Newport Beach, California officer “passed out while driving his Interceptor,” and the vehicle then “swerved across two lanes of oncoming traffic, nearly hitting another car head on, and crashed into a tree at 55 mph.”
Ford has argued that the concerns associated with the Police Interceptors relate to “aftermarket modifications” that are not present on consumer Explorers. Safety advocates, however, point out that only 11 of the 791 complaints collected by NHTSA involved police interceptors.
III. Pitfalls and Obstacles in CO Lawsuits
CO cases present many unique challenges. Notably, the cases involve difficult problems with both medical and engineering causation, as the plaintiff bears the burden of both establishing harmful exposure, the cause of the exposure, and the medical correlation between that exposure and the claimed injuries. Each of these inquiries, in turn, will often require complex expert analyses from physicians, engineers, and a wide array of additional experts. Moreover, finding a recoverable defendant can also be troublesome, as insurance policies sometimes contain exclusions which may or may not apply, depending on the policy language, the facts, and the applicable law.
A. Proving Liability and Causation
Establishing causation in a carbon monoxide case can be particularly time-consuming and expensive. The expertise involved is often wide-ranging. At the outset, the plaintiff will typically need an expert who can testify as to the existence of some type of code violation, poor design, faulty installation, bad placement, or other cause of harmful emissions. Doing so can require experts with specialties ranging from building construction, building codes, property management, appliance installation, industrial hygiene, mechanical engineering to combustion, and physics.
Moreover, even if the source of the CO is evident on its face, the defense will always look for alternate sources of CO exposure, no matter how irrational or nonsensical. As a result, the plaintiff generally must hire one or more experts to definitively establish the source of CO. And, regardless of where the contamination source is located, the plaintiff will then usually need to hire an expert to determine the potential migration pathways of the CO into the residence, building, or other exposure location. This expert will then need to be able to explain how and why the CO reached certain levels in the pertinent areas. Typically, this involves an inspection of that location, as well as testing, calculations and even removal of the appliance or other CO source.
Additionally, while positive CO readings are important and helpful, many, if not most, plaintiffs will not have access to this kind of evidence. This is particularly true in cases involving a CO injury caused by long term exposure to levels that would not cause a CO alarm to sound. Once again, the plaintiff will need one or more experts to explain this phenomenon and use scientifically proven methodology to determine what levels the client was exposed to and the length of the exposure.
The defense will also challenge whether the exposure levels could result in the type of injuries suffered by the plaintiff. This argument can be bolstered by the fact that even governmental agencies and associations differ on what constitutes permissible amounts of exposure to CO. For instance, for the workplace, the current Occupational Safety Health Administration (“OSHA”) permissible exposure limit (“PEL”) is 50 parts per million as a time weighted average (“TWA”) over an eight-hour period. The National Institute for Occupational Safety and Health (“NIOSH”) has established a recommended exposure limit (“REL”) for carbon monoxide at 35 parts per million as a time weighted average over an eight-hour period. The American Conference of Governmental Hygienist (“ACGIH”) has assigned carbon monoxide a threshold limit value of 25 parts per million as a time weighted average for an 8-hour workday and a 40-hour work week. However, in a living space, the maximum acceptable levels are much lower. Indeed, according to American Society of Heating, Refrigerating and Air Conditioning Engineers (“ASHRAE”), the maximum acceptable level of CO in a living space is 9 parts per million, with 0 being the “desirable level.” For sake of comparison, fire departments require the use of self-contained breathing apparatus for exposures, no matter how brief, to anywhere between 25 – 50 parts per million.
While the different standards can provide fodder for a defense experts, the fact remains that 0 parts per million is desirable, and 9 parts per million is the maximum acceptable level.
B. Proving Damages
Like causation, establishing damages in a CO poisoning case takes a myriad of experts. As CO poisoning affects many systems in the body, including the brain, the lungs and the skeletal system, a multidisciplinary team of medical experts is needed to properly evaluate the client to determine the actual effects of the CO exposure on the body. These can include neurologists, audiologists, cardiologists, toxicologists, neuropsychologists, psychiatrists, speech and language therapists, physiotherapists, and neuro-optometrists. Diagnostic studies such as MRI’s, PET scans, MRS’s (brain spectroscopy) are often needed to help show the damage to the brain.
The defense will delve into not only the Plaintiff’s previous medical history and family medical history but social history as well. A good defense lawyer will look at every pre-existing medical condition, surgery and mental health treatment, the Plaintiff’s use of alcohol and drugs, prescription or illicit, smoking habits, and the entirety of the Plaintiff’s family medical history. In doing so, they will focus in on cardiovascular, neurological, psychological, and cognitive issues to explain away or diminish the effects of CO exposure. The defense will also probe into potential exposure to solvents, chemicals and toxins to explain the symptoms rather than admit CO exposure caused any damage, so, again, the plaintiff will need an expert, or experts, who can address same.
C. Finding Insurance Coverage
Most general commercial liability policies contain a “pollution exclusions.” For years, courts have grappled with the interpretation and application of the various iterations of the “pollution exclusion.” Most state court decisions addressing the scope of the pollution exclusion fall into “one of two broad camps.” See Colony Ins. Co. v. Victory Construction, LLC, 2017 U.S. Dist. LEXIS 34368(D. Ore, March 9, 2017); Century Sur. Co. v. Casino W., Inc., 677 F.3d 903(9th Cir. 2013). The Ninth Circuit has summarized these interpretations as follows:
Some courts apply the exclusion literally because they find the terms to be clear and unambiguous. Some have even found the exclusion clear and unambiguous when applied to carbon monoxide poisoning . . . Other courts have limited the exclusion to situations involving traditional environmental pollution, either because they find the terms of the exclusion to be ambiguous or because they find that the exclusion contradicts policyholders’ reasonable expectations.
Id.
For instance, recently, after a lengthy analysis, the United States District Court of Oregon determined that carbon monoxide is a pollutant as defined in the Policy’s pollution exclusion clause, and therefore excluded claims for carbon monoxide poisoning claims. See Colony Ins. Co. 2017 U.S. Dist. LEXIS 34368 at *28. On the other hand, the Nevada Supreme Court determined that both the absolute pollution exclusion as well as the indoor air quality exclusion in a commercial general liability insurance policy were ambiguous because they were subject to multiple reasonable interpretations, and therefore determined that neither barred coverage for damages due to carbon monoxide exposure. Century Surety Company v. Casino West, Inc., 329 P.3d 614(Nev. 2014).
Due to the disparity in the laws throughout the country, a declaratory judgment action might be necessary to determine the applicability of insurance coverage in a carbon monoxide poisoning claim, bringing yet another wrinkle into these complex cases.
IV. Conclusion
Carbon monoxide poisoning cases are not for the faint of heart. Litigation is difficult, complex contentious, and expensive. To litigate the case effectively, it is important to understand the unique characteristics of liability, causation, and damages. Establishing the factual and evidentiary predicate for these elements in the context of CO litigation requires teams of experts who can make or break the plaintiff’s case. No two cases are the same and each must be approached in its own, specific manner.
Carbon Monoxide Poisoning, MedlinePlus, available at https://medlineplus.gov/ency/article/002804.htm (last accessed Aug. 9, 2017).
Id.
Neil B. Hampson, Cost of Accidental Carbon Monoxide Poisoning: A Preventable Expense, PREVENTATIVE MEDICINE REPORTS, Vol. 3 (June 2016).
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See http://www.ncsl.org/research/environment-and-natural-resources/carbon-monoxide-detectors-state-statutes.aspx
Herb Weisbaum, Keyless Automobile Ignition Systems are Fatally Flawed, Critics Say, NBC NEWS, available at http://www.nbcnews.com/business/autos/keyless-automobile-ignition-systems-are-fatally-flawed-critics-say-n490111 (Jan. 5, 2016).
John Cichowski, Road Warrior: Carbon Monoxide Poses Greater and Greater Risks, NORTHJERSEY.COM, http://www.northjersey.com/story/news/columnists/john-cichowski/2016/12/09/road-warrior-carbon-monoxide-poses-greater-and-greater-risks/95153920/ (Dec. 9, 2016).
And Now, the Rest of the Story on Keyless Ignition, http://www.safetyresearch.net/blog/articles/and-now-rest-story-keyless-ignition (Jan. 6, 2017).
NHTSA PE 16-008 at https://www.nhtsa.gov/vehicle/2012/FORD/EXPLORER/SUV/FWD#investigations
The TSB’s claim that this problem surfaces when “the auxiliary climate control system is on” and “may be worsened when the climate control system is in recirculate mode and the vehicle is heavily accelerated for an extended period of time”
Id. Eleven of the reports include Police Interceptor vehicles.
https://www.nhtsa.gov/vehicle/2012/FORD/EXPLORER/SUV/FWD#investigations
Ian Thibodeau, Ford Extends Police Explorer Investigation After Crash, THE DETROIT NEWS, available at http://www.detroitnews.com/story/business/autos/ford/2017/08/03/ford-explorer-carbon-monoxide/104254060/ (Aug. 3, 2017).
Fumes Force Austin Police to Pull Ford Explorers Off Patrol, ABC 13, available at http://abc13.com/automotive/fumes-force-austin-police-to-pull-ford-explorers-off-patrol/2258115/ (July 28, 2017).
Chris Isidore, Police Pull Fords From Service Over Carbon Monoxide Fears, CNNMONEY, available at http://money.cnn.com/2017/07/14/autos/ford-carbon-monoxide/index.html (July 17, 2017).
Ian Thibodeau, Ford Extends Police Explorer Investigation After Crash, THE DETROIT NEWS, available at http://www.detroitnews.com/story/business/autos/ford/2017/08/03/ford-explorer-carbon-monoxide/104254060/ (Aug. 3, 2017).
NHTSA, Ford and CO Poisoning: Sickening, Safety Research & Strategies, Inc., available at http://www.safetyresearch.net/blog/articles/nhtsa-ford-and-co-poisoning-sickening (Aug. 14, 2017).
See United States Department of Labor, Occupational Safety and Health Guideline for Carbon Monoxide, (OSHA April 13, 2000); ASHRAE 62.2.