South Carolina Mr. Heater Litigation Continues

A tragic 2022 death has spawned continuing litigation regarding the design of a Mr. Heater-brand propane tank-top heater. A South Carolina federal court granted summary judgment in favor of the heater’s manufacturer, and the plaintiff appealed. On July 17, a federal appeals court deferred a ruling on whether the summary judgment should be affirmed and asked the South Carolina Supreme Court to first clarify an issue under South Carolina law. So, a final ruling is unlikely until at least next year. The case is Near v. Enerco Group Inc.

Workshop & Heater

The story behind the case begins in the workshop of Douglas Belger. There, in December 2022, Belger and his nephew Keith McCullough were repairing Belger’s broken mailbox. The two were best friends and spent a lot of time together in the workshop fixing things and generally tinkering.

It was an unusually cold December day (water lines in the building had frozen), and so McCullough brought in a portable propane tank-top heater to keep them warm while they worked. The heater was a Model MH15T marketed under the name “Mr. Heater.” It was designed, manufactured and marketed by Enerco Group Inc. (See Picture 1 of a similar heater taken from the court decision.)

Many in the industry are familiar with this type of portable heater, which has been on the market in one form or another for the past 40 years or more. It is attached to the valve outlet of a small cylinder, almost always 20 pounds or fewer. Propane passes through a regulator and is ignited by a small burner. The burner flame is directed across a metal mesh or ceramic surface that becomes very hot (usually glowing red or orange).

Clothing in Flames 

As they worked in Belger’s shop, both men would periodically stand near the heater to warm themselves. According to the court decision, Belger was wearing “a plaid brown shirt, long john undershirt, a jacket that was 100% cotton and pants that were a blend of 60% cotton, 36% nylon and 4% elastane.” At some point, McCullough went outside to gather wood, wanting to demonstrate a new wood splitter he had put together. He was gone no more than 45 seconds. 

As he walked back toward the shop, Belger came running out with his clothing in flames. While he did not see what happened, McCullough speculated that Belger “inadvertently got close, fell or backed into the heater,” which ignited his clothing. Belger sustained burn injuries over 13% of his body. He underwent surgical debridement and grafting but died while in recovery.

Jesse Near, a representative of Belger’s estate, filed a wrongful-death product liability lawsuit against Enerco in federal court. He claimed the design of Mr. Heater was defective because it lacked an adequate guard or other feasible alternative design that would have prevented clothing from igniting when a user came too close to the heater. He did not assert a separate failure-to-warn or warnings defect claim.

Adequate Warnings?

However, Mr. Heater’s warnings were central to Enerco’s defense. It argued the warnings accompanying the heater, if adequate, rendered the product nondefective under South Carolina law. It moved to disqualify Near’s expert on warnings, and it sought summary judgment in its favor. Near did not agree with Enerco’s interpretation of South Carolina law and moved to certify to the Supreme Court of South Carolina the question of whether adequate warnings preclude a design defect claim. (Federal courts must apply state law in cases like this. If the state law is unclear, the state supreme court can be asked to clarify it.)

The trial court ruled in Enerco’s favor across the board. First, it disqualified Near’s expert on warnings. It noted that Enerco “sells these heaters with numerous warnings and instructions,” and that these are displayed “on a hangtag attached to the heaters, on their packaging and in the Operating Instructions and Owner’s Manual that accompanies the heaters.” It found that while the expert claimed these warnings were inadequate, she offered no explanation of the basis for this conclusion and “offers no alternatives.” It added that she did not use a “reliable methodology” and that her opinions were based on her own “say so” without supporting evidence or proof.

Failure to Offer Evidence

The court then addressed Enerco’s motion for summary judgment. It agreed that South Carolina law was clear: adequate warnings on a product defeat a design defect claim. So, it refused to ask the South Carolina Supreme Court to address the question. And it found that, since his expert was disqualified, Near failed to show that the warnings on the Mr. Heater were inadequate:

“South Carolina law allows adequate product warnings to ‘cure’ alleged design defects. Thus, the court need not address whether a design defect existed in this case, as plaintiff has failed to offer admissible evidence, whether through expert testimony or otherwise, challenging the adequacy of the product warnings. Furthermore, plaintiff’s own experts concede that, had [Belger] followed the warnings provided, the tragic accident in which his clothing caught fire would not have occurred.”

Appeal & Certification

Near appealed to the U.S. Fourth Circuit Court of Appeals, based in Richmond, Virginia. The appellate court first addressed the question of whether the South Carolina Supreme Court should be consulted on the central legal issue in the case — whether adequate warnings on a product defeat a claim that the Mr. Heater was improperly designed. It held that it should be consulted:

“[W]e respectfully certify the following question of law to the Supreme Court of South Carolina: Do adequate warnings preclude a design defect claim as a matter of South Carolina law?”

Next, the court took up the disqualification of Near’s expert on warnings. On this point, it affirmed the trial court’s ruling:

“Here, the district court reasonably concluded that [the expert] did not connect her theory to objective evidence. In reaching that conclusion, the court did not rely on one methodological omission in isolation. It identified several gaps showing that [the expert] did not reliably tie her general human factors principles to this specific case.”

Since the court asked the South Carolina Supreme Court for a ruling on the central legal issue in the case, the appellate court deferred a decision on Enerco’s summary judgment motion until that ruling is received.

For further resources on court cases taking place across the propane industry, take a look at BPN’s other Propane & the Law articles.