Kyla Asbury Nov. 14, 2014, 10:00am

BOSTON (Legal Newsline) - An appeals court ruled a class action complaint against Titeflex Corporation over the alleged risk of harm of one of its products is "too speculative" to give rise to the case.

The district court dismissed the class action product liability complaint for lack of standing and a three-judge panel affirmed the dismissal in an opinion filed Nov. 4 in the U.S. Court of Appeals for the First Circuit.

Chief Judge Sandra Lynch and circuit judges Kenneth Francis Ripple and Bruce M. Selya voted in the majority, with Lynch authoring the opinion.

Tim Kerin "fails to allege facts sufficient to even calculate or estimate the risk," the opinion states.

Even in the instances in which Kerin alleges there has been "actual damage," it is unclear that Gastite corrugated stainless steel tubing was the source, according to the opinion.

Another consideration suggests that the risk carried by the product is not sufficient to give rise to a case or controversy, according to the opinion.

"This is not a case of regulatory silence, but of regulatory approval of the 'defective' product, after a study of the risks," the opinion states. "Although not dispositive, this consideration carries particular weight because the political branches have, after study of the particular risk in question, concluded that such risk is both permissible and manageable."

Kerin owns a house in Florida that has Gastite CSST installed to provide gas for his outdoor firepit.

Kerin filed his class action on July 25, 2013, and the federal court dismissed the lawsuit on Jan. 7. Kerin appealed the dismissal on Jan. 28.

Kerin claimed CSST is likely to fail when exposed to electrical insult, particularly lightning.

In an indirect lightning strike, a strike close to a structure or house generates a partial lightning current in the metal links of the building.

"We do not adopt the district court's reasoning to the extent it relies on the proposition that lightning strikes present a textbook example of speculative risk and remote possibilities which are simply insufficient for injury in fact," the opinion states.

Kerin does not allege that this vulnerability of his home's CSST to lightning strikes has manifested in any actual harm, according to the opinion.

"The district court dismissed for lack of standing, stating that 'it is obvious that plaintiff cannot clear the 'injury in fact' hurdle....The court reasoned that the 'strand of simply too attenuated,' requiring both a lightning strike and one that effects a puncture in the CSST," the opinion states.

The court also concluded that, even if Kerin had standing, he failed to state a claim because he failed to allege "an applicable standard against which [Titeflex's] due care could be measured" as required to claim economic injury from a defective product under Massachusetts law.

"We do not hold that increased risk of harm from product vulnerability to lightning strikes can never give rise to standing," the opinion states. "But in this case, Kerin fails to allege either facts sufficient to assess the probability of future injury or instances of actual damage where the cause is clear, and concedes that CSST meets applicable regulatory standards specifically addressing the risk. We affirm dismissal based on lack of standing."

Kerin and the class members are represented by Kevin T. Peters and Erika Todd of Arrowood Peters LLP.

Titeflex is represented by John G. Papianou and Charles B. Casper of Montgomery, McCracken, Walker & Rhoads LLP; and Jeffrey E. Poindexter and Jodi K. Miller of Bulkley Richardson & Gelinas LLP.

U.S. Court of Appeals for the First Circuit case number: 14-1130

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