Inflaming a Venire

If you haven’t already, you will likely hear about some accidents involving Napa Firelite Fire Gel, which has ignited a firestorm of controversy, pictured here (h/t TortsProf Blog).  The New York Times published a story about the accidents, using some fairly inflammatory quotes, even comparing the Fuel Gel to a Molotov Cocktail.  The Fuel Gel remains the hottest gift of the summer, though, providing a lot of bang for the buck.

Lest you think my introduction replete with fire references was somewhat crass, let me suggest it was no more incendiary than the piece in the Times that, using the quotes of witnesses to the accidents, compares Firelite to the following: napalm, Molotov Cocktail, lethal weapon, and gasoline in a bottle.  Plaintiff’s lawyers are already linking to the Times piece, to legitimize their opinion that the Firegel contains a “blatant defect.”  Yikes.  I understand that completely neutral stories would not sell newspapers, but there has to be some concern about the potential impact of stories such as these on the venire.  Put between a rock and a hard place, Napa pulled the product from shelves, until a different warning could be put on the label.

While the New York Times goes out of its way to roast Napa, there is relatively little overt discussion of what probably happened.  From the descriptions in the Times, it seems that both cases of explosions were caused when an individual added more fire gel to an already ignited or hot firepot.  Now, there was a warning not to do this, but the jury question will be whether this warning was adequate.  While you and I may not put a flammable jelly-like substance into a hot container, not all are as cautious.  Did the inadequate warning cause the injuries?  Who knows?  But The New York Times is doing its part to fan the flame, and to ensure that any possible juror knows that Napa products are defective before any factfinding has taken place.