Playing with Fireworks? Don't get blown up! Don't get sued!

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Please rise, court is now in session. I strenuously object.A legal podcast brought to you by the Pittsburgh law firm of Flaherty Fardo isnow in session. All those seeking information about the law and legal mattersaffecting the people of Pittsburgh and the Commonwealth of Pennsylvania, half-baked opinions and a dose of self -indulgence are invited to attend andparticipate. I want the truth! You can't handle the truth! The defensestrenuously objects. You would!

Call the first witness. Hello and welcome to a very specialholiday episode of I Strenuously Object. We've got the Fourth of July loomingfast upon us, and you know, the grand tradition here is to celebrate the Fourthby allowing rank amateurs to play with explosive devices. Celebrate theindependence of your nation by blowing up a small part of it. All right.Obviously as a personal injury lawyer.

This is a thing that implicates my profession and in casesI've dealt with in the past. And, you know, we'd like to have a chance to talkabout it today. So, and we're very lucky we're joined here today by Dr. JohnSteinberg, who is, has as much experience and expertise when it comes tofireworks as, you know, as anyone really. We're talking about a man with 30years experience in pyrotechnic chemistry, manufacture and displays, a man whohas served as an instructor.

in both civilian and law or fire enforcement trainingprograms relating to fireworks and pyrotechnics. He's done displays himself asa lead and a co -lead. He's toured manufacturing facilities on three differentcontinents, examining the manufacture of fireworks. We're talking about a manwho's literally written the textbook and written the rules, including havingwritten entire chapters and portions of the code.

for the National Fire Protection Association Code relatingto both consumer and display fireworks. So we're bringing out the big guns heretoday and we're happy to be joined by Dr. John Steinberg. Doctor, how are youtoday? Doing well. Good morning, Bill. Let me dial back three elements andhyperbole really quickly. Number one, when you said rank amateurs playing withexplosives, it's great for drama, but the whole point of the consumer fireworksindustry,

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is that these products are appropriate for the generalpublic. And if you follow the directions, they should carry no more danger tothe user of these products than using a can of boat spray in the backyard. Thesecond is I like the drama celebrating the nation's independence by blowing upa part of it. But really, the only thing we want to blow up is the fireworksthemselves. I was asked one time by a sponsor, what's your definition of asuccessful fireworks show? And my response after thinking was,

Basically when everybody in the audience and the performerslooks pretty much the same afterwards as they did before. The third is, Iappreciate your compliments. Yes, I'm the principal author of the textbook ondisplay operator training, but when it gets to the part about writing thenational fire code, the NFPA National Fire Protection Association codes, Iserve as one of many authors on a technical committee of over 30 people.

And no one of us can claim authorship for a chapter or adocument nor speak on behalf of the NFPA. Although, yes, there are parts of thecode when I'm looking at it with a fire marshal and I say, yes, I wrote thatsentence. So there is that, but it's a collective effort. And with that, I'mhappy to work with you on this very timely broadcast as...

We are getting ready to go through the peak season offireworks in both professional displays and consumer products. And indeed, themisuse or misadventures that occur with fireworks have led to a lot ofinteresting matters for attorneys on both sides of civil litigation, insurersand other parties to deal with. I appreciate the correctives in and whereappropriate. Honestly, I could we could spend.

the entire time we've got here today, just kind of parsingyour resume. It's fascinating. I know that I introduced you at the beginning,right, as as Dr. Steinberg, and you are a doctor, you're a medical doctor.Before we get into the kind of nuts and bolts here, how is it that you came tobe involved in fireworks? The short version of a three decade story is as akid, I was always fascinated by science. I actually knew pretty early I wantedto go into life sciences and be a physician because I couldn't master the mathrequired to do physics.

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so I knew right away I was going to be a life science guy. Iwas also fascinated by the chemistry of pyrotechnics, colors, the effects inthe air. And later in life, after developing a medical career, I apprenticedwith a fireworks display company. They steered me to the organization, thepyrotechnics skilled international, of which I ultimately became president in1998. That organization had a seat on the fire code committee at NFPA.

So I was introduced to my future contractual employers inlaw enforcement. They also needed training programs. And while I was not reallythe best pyrotechnician, I had a lot of experience as a teacher. So I organizedtheir training programs and put together a textbook, became a member of theNFPA technical committees and got involved in generating fire code. And ofcourse I got my own display operator license and I've been conductingpyrotechnic displays professionally in Maryland since 1994.

So my interests are in chemistry and display fireworks,consumer fireworks, and the safe use and enjoyment of fireworks in anycapacity. As you know, we're a law firm here and this podcast is affiliatedwith the law firm, Flaherty Fardo Rogel and Amick, which is a personal injurylaw firm in Pittsburgh, Pennsylvania. I believe I saw on your resume, you wereinvolved in putting on the bicentennial display for the city of Pittsburgh. Isthat right? Yeah, I,

seem to remember a lot of hot afternoons out on the FortPitt Bridge wiring and one device after another. But you know, from the barge,when we did the display, it actually looked quite impressive. I'm glad that it,you know, displayed well for the people who are doing it and not just thosewatching. Anyway, what I want to talk about today is primarily, in some sense,it's the intersection of your, of the medical profession and your interest inpyrotechnics, right?

I don't know how reliable these numbers are. I assume you'veencountered better numbers than I have, but I've seen something in the range of10 ,000 emergency room visits being typical in a given year for fireworksrelated injuries. Yeah, everything at the end blowed up. Blowed up real good.And from what I've seen, at least in the last couple of years, you're lookingat anywhere in the range of half a dozen to a dozen fatalities associated withthe use of fireworks. Are those numbers right? All right. Let's sort of dissectthose numbers. One is there is an

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system called NICE, National Information from EmergencyServices Systems, I believe. And to get categorized as a fireworks injury, Icould be going to the store to purchase consumer fireworks and getting them outof my car and tripping and falling over my kid's skateboard and have itrecorded as a fireworks related injury. So I prefer the statistic that is givenin two parts. One, yes.

there are fireworks injuries and fatalities every year. Andthat is an unfortunate aspect of this as there are swimming pool accidents,lawnmower accidents, bicycle accidents, et cetera. The second part of that, andthe statistic that I think the industry really is proud of is that in a per usestatistic, that is when you look at millions of pounds of fireworks usedcompared to the number of injuries,

Fireworks safety has actually been increasing in that as theuse of fireworks is expanded the proportionate or per capita if you will rateof accidents has declined now that said there are basically three types ofaccidents and I assume you want to focus on consumer fireworks Or would yourather include display fireworks as well? I mean, I'm happy to hear about both.All right, so

The three broad types of misadventures that lead to adverseoutcomes with fireworks are first and foremost, if the product is defective.And this is certainly not intentional, but defective products occur in everyindustry from computers to automobiles. And problems in manufacture,impermissible use of chemicals. As an example, a lot of fireworks aremanufactured in China.

and different markets have different requirements. The USAused to be the biggest importer of Chinese fireworks. We're now actually, Ithink, the third. Domestic consumption in China is number one, exports to othermarkets such as South America and Europe. Canada is number two, and the US isnumber three. But sometimes things that would be permissible in one market andnot in the United States are inadvertently imported.

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despite testing protocols and procedures designed toprohibit that. And then there are products that can be misassembled, defectivematerials, et cetera. So product defects are one type of occurrence wherethere's a breach in the industry standard of code required for the performanceof the device. The second broad category is operator error. Do not put hand orface over fireworks.

If it says use on firm level surface, do not hold in hand.And we have in these reloadable aerial shells any number of fatal outcomeswhere people take the launcher and put it on their heads or on their chests. Orone case I worked as an expert in Texas, they wanted to hold it up in the air.It's going 200 feet in the air, 100 to 200 feet in the air. What differencedoes three or four more feet make? And of course not being supported, thebottom blew out and injured the fellow. And then the third.

is when you get into confounding variables. As an example,the use of alcohol, the failure to supervise minors. So the product isn'teffective and somebody actually read the warning labels, but there's some thirdfactor. Typically, alcohol, failure to supervise children when they're gettingburned by sparklers because no adult is supervising them properly, et cetera.

So I'd say those are the three broad categories to recap.Product defect, operator error or misuse and contributing factor that leads toan adverse occurrence. Great, thanks. And I want to talk about each of these alittle bit and to specifically on my end focus upon the legal angles that arein play in them. But let me just start here. We were.

we do a segment that we periodically call case or no case,where we go over a fact pattern and then assess whether or not we think thatthe fact pattern in question is actually an appropriate place where there's areasonable lawsuit, a reasonable case, a reasonable claim for recovery. I'mjust going to jump out there and put the answer first. If you're launching afirework off your head and it burns you or injures you potentially seriously orfatally,

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No case. Don't don't la head. That's on you if you care howmuch alcohol you' that's never a good dec we had a resident and al one of theseand hold it head and it was a fatality. going to see how very powe one of theseand take it a of one of the watermelon

See how thick that is?

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I guess I'd like to start by talking about operator error.And you had mentioned there's a difference between display fireworks andconsumer fireworks. Can you just tell us what you mean by those terms when youuse them? All right. Well, let's go back to your example about not having acase if you launch a firework off your head first. I think you guys are aware.Most of the work I do is defense work. I'm more often retained as an expert onthe defense side of civil litigation and the defense side in criminal matters.

than I am for plaintiffs in civil litigation. But one of thereally interesting things about that is you can have operator misuse and stillhave a case. As an example, do not hold in hand. Well, if you do not hold inhand, hmm.

and decide, maybe that's not such a necessary thing. I'dlike to hold the firework and throw it. And it blows up in your hand. And thenthis is getting into, you know, I'm outside of my area. I'm a physician who's afireworks expert. You're the attorney. But as I understand it in lay terms, ifyou make a product that has a foreseeable misuse and you have steps that youcan take to prevent an adverse event, a bad outcome,

from that foreseeable misuse and you don't do it, there maybe a case. I'll give you a specific example. A case in Missouri, there's alittle ball on top of a rocket and you're supposed to light the fuse to therocket and it goes up in the air and the ball goes bang and does your effect.And one of our requirements for a type of explosive called flash power, whichis very energetic, is you can't have more than...

130 milligrams, that's like a tenth of a gram, it's likethree hundredths of an ounce in the firework because it's very explosive, verypowerful. And in this case, the firework had 25 grams of flash power, way, waybeyond the balance of miscibility. So what happened was when this fellow litthe rocket, it kind of blooped out and fell over and struck a rock and the ballpopped off. And he picked up the ball, which had a little fuse coming out ofthe bottom thinking, well, I'll just.

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like the fuse on the ball and throw it, not realizing it wasa much faster fuse than the one that went into the rocket. And as soon as helit it, it exploded and blew off half his arm. So when I sat for thedeposition, you know, and the deposing attorney, oddly enough, was using me inanother case as a defense expert. So he wasn't going to impeach my credibility.And he said, well, it said, do not hold in hand. Yes, sir. That was operatormisuse. Yes, sir. You know,

that was clearly against the way it was supposed to be used.Absolutely. And then the plaintiff's attorney said, and had it been a lawfulproduct, my client would have had a couple of scorch marks on his fingers, butbecause it was an illegal and permissible breach of standard product that blewhis hand off. As you guys know, if things were simple, we wouldn't need lawyersto sort them out. That's right. So that aside, whether or not...

There's a case when there's an injury. The fact that it's anaccident or a misuse doesn't settle it. You really have to look at thespecifics. And obviously, if it's a lawful product and you're grossly misusingit, you stick your face over the tube and shoot yourself in the eye. Okay, youknow, that's on you. Let's go blow some shit up. Blow some shit up. Now back tothe next thing. So you asked at the end of it, what are some of the differencesbetween display fireworks?

and consumer fireworks. And, you know, obviously, if thisway of saying it, if the litigation aspects were simple, you wouldn't need todo podcasts and have proceedings, etc. You know, as an aside, before I tell youthe difference between consumer and display fireworks, you know, I was raisedby lawyers. My father was a trial judge in Maryland. My cousins are attorneys.One day, my dad, who was a circuit court judge, was playing law profession. Oneof my cousins, who was a third year law student,

And his beeper had gone off and he said, you know, policemanis going to come and ask me to sign a search warrant. And what's the standard Ishould use? And my cousin, Ian said, if the evidence presented would lead areasonable man to conclude that a crime had been committed, and I looked at thetwo of them, the judge and the future lawyer, and I said, listen, guys, ifthere were reasonable men, we wouldn't need lawyers. So in any case.

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Well, way to way to avoid going into the family business,Doc. I think you got I think you got the better part of it. Who knows? Now windup spending half of my life working with lawyers anyway. So here we go. Displayfireworks and consumer fireworks are exactly the same with one difference. Theyuse the same explosive materials, the same black powder, lift charge, the samecolor producer effects, the same metal powders.

Display fireworks and consumer fireworks are exactly thesame with one difference. Consumer fireworks use smaller amounts of thematerials that are energetic. They wrap them in smaller individual containersand they have weight and size limits that keep them out of the broad categoryof display fireworks, which are regulated by the Bureau of Alcohol, Tobacco,Firearms and Explosives, our ATF friends, as explosives.

So to stay out of the regulated end, it could be the samething, the same chemicals, the same mixtures, the same black powder, but it'sin smaller quantities with limits on how much you can have. And that's thebroadest differentiation between consumer fireworks and display fireworks. Thesecond is when you get outside of the weight limits that are the restrictedmaximum for consumer fireworks.

The second feature is display fireworks are for sale toprofessionals only. Part of being a regulated explosive means that it can onlybe used by a professional who has the appropriate licensure, training, andexperience to handle that type of material. Whereas consumer fireworks arejudged to be safe if they adhere to industry standards, codes and regulations,and are properly labeled.

to be placed in the hands of the general public for consumeruse, requiring no particular training or prior experience. Okay, so let me askyou this then. I, with no professional licensure whatsoever in this field, Ican't walk into one of these kind of pop -up tents or seasonal fireworks storesthat opens up. Anything I buy in there is a consumer firework, right? I can'tbuy display fireworks.

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kind of accidentally or by walking into a store, correct? Ifyou have gotten a hold of consumer fire, I'm sorry, display fireworks, theperson selling to you has committed a breach of federal law. And I know thatthe state laws have changed a bunch over and here in Pennsylvania over recentyears, as far as really liberalizing and allowing the purchase of a muchbroader array of people. I don't think people are driving across the borderinto Ohio to buy fireworks anymore, which, you know, when I was in high schoolwas very much a thing.

But the display fireworks, those are federally regulated.And so those rules are going to be the same state to state, correct? Correct.Federal regulations on explosives, including display fireworks, are the samewith respect to transportation and possession and sale. The states, you know,the National Fire Protection Association has an adamant organizational positionagainst the use of consumer fireworks. They are the authors of the slogan,leave it to the professionals.

Nevertheless, despite that organized opposition, the use ofconsumer fireworks in the United States has been both broader and deeper witheach passing year. More and more jurisdictions over the last 20 years havepromulgated regulations that allow consumer fireworks in one type or another.They may be somewhat limited, such as in my state of Maryland, where we'relimited to what we call safe and sane, non -aerial stuff, things likefountains.

sprays or sparks and things that go off on the ground.Whereas in other jurisdictions, the full array of consumer fireworks, includingrockets and aerials and shells and multi -tube devices, is allowed for sale.And of course, as you mentioned, people want to use fireworks. I'm sure thereare plenty of Marylanders who drive up to your state, Pennsylvania, andpurchase fireworks that they can't buy in Maryland and want to use them here.

Now, legally, if I do that, if I've crossed state lines tobuy a firework that's available in Pennsylvania, but not in Maryland, and thenI'm injured by it, in your experience, has that affected these claims orpeople's ability to recover if they're injured? Yeah, that's a reallyinteresting question. So if I drive up to Pennsylvania and buy some reloadableaerials and bring them back to Maryland, the purchase was legal inPennsylvania. The firework is per se legal.

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It doesn't breach any federal standards and it doesn'treally breach Maryland standards. In Maryland, the possession, the storage, thetransportation of that firework would be legal. It's only the sale or dischargeof it that would be illegal. So I'm using fireworks in breach of state law andsomething bad happens and I want to bring a case. So I'll give you an example.I worked as an expert.

on a case in New York State. And the injured person was aNew York State trooper. And the New York State trooper drove to Pennsylvaniaand purchased a reloadable aerial firework. And he took it back home and hefollowed all the procedures for use. He set the reloadable aerial firework on afirm plywood surface and he lit the fuse and he had his neighbor over.

and they got back up on the porch and they were 62 feet awayfrom the firework and when the fuse went down in the tube the firework explodedviolently instead of propelling in the air and it kicked a concrete plug thatformed the base of the mortar tube in the direction of the person who lit itand it hit him in the eye and took his eye out.

Of course, you got 360 degrees where that thing could gofiring off to, of course, it fires right back into his eye. And as a furthercomplication, because he was now limited to monocular vision, he only had oneeye, he lost his job as a state trooper. So he wanted to make a claim that thiswas a defective product. That never mind, he was breaking the law, which was

charged with enforcing, having brought the product back intoNew York State and against or contrary to state regulations, had launched anaerial shell. He nevertheless made the claim that, yeah, yeah, yeah, I brokethe rules and I shouldn't have done it, but that's a defective product. It'snot supposed to explode in the tube, it's supposed to go in the air. And if theproduct weren't defective, I wouldn't have been injured. And the case neverwent to trial.

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You know, I was in that case a plaintiff's expert, not adefense expert. And that's another thing. Attorneys get a lot of bad rap. Youknow, experts, the hired guns, you'll say anything. I told you, I was raised bylawyers and a judge. The role of the forensic expert is to tell the retainingparty what you're dealing with. It is not the job of an expert to litigate thecase. That's the lawyers.

It's not up to the expert to win the case. It's not up tothe expert to determine credibility. That's for the finder of fact, the judgeor the jury. It's simply to state and answer the technical questions. And all Iwould do is state this product was defective. The standards require it to belaunched in your vertical path into the air. And because I'm a physician andfairly expert in injuries, I mean, I know how to read a medical chart.

I could also state that the injuries were consistent withthe concrete plug from the base of the mortar strike in the eye. And then I'llleave it to the attorneys to decide what to do. In that case, a settlement wasreached. It never went to trial. But the summary of that long tangentialquestion is, yes, even in cases where the use of a defective product in thatjurisdiction is contrary to local or state regulation, a successful claim maybe brought in that had your product not been defective,

my breach of local regulations would not have caused adevastating injury. It's interesting. There is a lot and when I say a lot, Imean a lot of of law and of nuanced law surrounding the idea of a quote unquotedefective product. You may have listeners out there who are familiar with thephrase products liability, right? It's kind of a whole genre of cases or strictliability, which is a kind of liability that attaches in the case of one ofthese defective products. So I want to talk about a couple of things when itcomes to

product defect questions generally. The first of which is,and I think you've seen this in your practice, Dr. Steinberg, is when you findthat the product is defective, simply alleging that the user of the product wasnegligent or violated the law in some way does not matter. It does not relievethe liability for the defective product. The liability for the defectiveproduct kind of comes first and is set in stone.

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Irrespective of any act of negligence, because the idea isstrict liability kind of supersedes any claim for negligence. So now you'dmentioned foreseeable misuse that that kind of falls within the causation ambitfor strict liability. And so if I use the product in a way that is negligent,but foreseeable, the person who sold me the defective product or whomanufactured the defective product or whatever.

remains liable for the consequences. Now, if I find somecompletely ridiculous new novel way to misuse the product that is notforeseeable, that's a different question, right? This comes back to launchingthe firework off our head. No one's ever tried that before. Or other parts. Iwas sort of smiling, thinking of some YouTube videos I've seen, but for sure.Is it lit? I feel it.

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I do, I remember something similarly, not properly rated forour use from the Jackass movie back, low those decades ago. And when, when thatwas a thing, so products liability does not require any negligence, knowledgeor wrongful act by the defendant. You only examine the product itself. And ifthe product is defective.

everybody and anybody on the kind of chain of custody andsale of that product is a theoretical defendant. The person who sold it to you,the person who imported it into the country, the person who manufactured it,whatever. That's especially important because as you said, Doctor, a lot of thefireworks that we use are kind of imported from China. And if our only remedyfor a defective shell was to try to figure out who made it in China and suethem and figure out how to either collect against a judgment against them hereor to

Sue them in China? You want to sue me? Why not? Me? Sueeverybody. You know, I have no idea what the civil court system in China lookslike, but certainly I couldn't do anything there. You would have injured peoplewith no meaningful remedy. So it's tough. The person who sells the consumerfirework or the person who distributes it to the seller, any of those peoplecan end up on the hook for a product that they had no reason to know was itselfdefective. They're not

They don't have to inspect it when it comes into their shop.And whether they do or don't inspect it, whether they do or don't usereasonable care is irrelevant. They're part of the chain that gets that to you.And I'm assuming that's usually what you're seeing in these kind of defectiveproduct situations, right? Is the lawsuits that you're being brought in as anexpert on are against not the manufacturer.

but some local distributor or warehouse, some retailoperation or wholesale operation as opposed to the manufacturer. Is that right?Not entirely. okay. Good. Good. Fix it. Let me step out of my lane for onebrief second. Come on over here. The water is good. Having worked with so manyattorneys, you mentioned three legal doctrines. One is product liability, whichvaries jurisdictionally.

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and I'll leave it to the lawyers to explain to other lawyerswhat strict product liability means. But that does have some variationjurisdictionally. The second is foreseeable misuse. And typically the nut onwhich foreseeable misuse hangs is that you were aware enough of it to buildpreventative measures from an adverse outcome into your codes and standards.And the third legal...

argument, your legal line of reasoning is when you talkedabout negligence and the difference between contributory and comparativenegligence also varies jurisdictionally. So I'll leave it to the lawyers todiscuss that. But those three legalisms aside, strict product liability, whatis foreseeable misuse and is there a standard of comparative or contributorynegligence in the jurisdiction?

Getting back to your question, which is people don'ttypically go against the manufacturer. And that's not necessarily true. I'mworking on a case not in your state right now involving display fireworks. Thisis where I'm retained by the plaintiffs. And the product manufacturer displayfireworks is an industry leader, a very, very reputable Chinese manufacturerdisplay fireworks.

And there was an allegation of a product defect. The aerialshell went off too low to the ground, went off low enough that it caused injuryto the operators. You know, because this is an act of litigation, I want toparse my words carefully. But there was an identified causation, anidentifiable means by which the accident could have occurred, the mis-malfunction, that was easily remedied.

with an inexpensive minor change in manufacture. That getsin on a whole other legal standard. You know, I could prevent all accidents ifI put them in steel bunkers and made them, you know, weigh four tons andoperate them 200 feet away. And part of the reasonability standard is, can youfix something to prevent a foreseeable misuse related accident that iseconomically and practically feasible?

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You're not required to make it absolutely error -proof. Butcircling back to the manufacturer, the responsible manufacturers of consumerfireworks and display fireworks in China have US agents and will accept serviceand often are targets and defendants and will defend claims. That said, not allfireworks manufacturers in China are traceable.

And that's why we have laws we have in the United States toprotect American citizens who are harmed by defective products or otherbreaches of industry standards, codes, regulations, etc. So I wouldn't say thatall Chinese manufacturers are beyond the reach of litigation and indeed willdefend claims and will appear in the U .S. courts and will accept service.

of appropriate documents. So I guess one of the lessons isin display fireworks, you know, when I'm out on the field, it's nice usingproduct that I know if something bad happens, the people who made it will standup and say, yeah, if we did it, we own it will help as opposed to, I don't knowwhere this came from, but hey, let's try it. Now it's harder in consumerfireworks because in China consumer fireworks are assembled and there's been ahuge...

constriction. The Chinese are trying to centralize themanufacturer fireworks into just a couple of provinces and to have factoriesthat are designated use and really, really standardizing, streamline things.But even then, you still can't necessarily find out exactly where the productwas made. There's another example could have been made a consumer fireworkproduct could have been made.

for a whole bunch of customers and the only thing differentis the outside labeling and the wrapper and the brand name. But that device isactually going to be sold under different names in different countries todifferent customers. So typically if something bad happens and you think theproduct was either defective or defective in a manner that there was aforeseeable misuse that could have been mitigated by appropriate steps andwasn't, then your targets are going to be the people who imported it.

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distributed it, sold it, et cetera. Now you had mentioned atthe beginning, right, three categories, kind of defective products, operatorerror and confounding variables. Let me get back to the confounding variablesmomentarily, but I think it's interesting that while these are kind of threedifferent factors or types of causes for a firework related injury, it turnsout they can overlap or coexist a lot.

Like you had mentioned, right? The gentleman picks it up andthrows it from his hand, but the fuse goes too fast and it explodes in hishand. We've got a combination of operator air and a defective product becausethere was way too much black powder in that firework and that caused the injurycoexisting with this particular foreseeable error. I am not going to guesswhether or not this individual in question was under the influence of anyalcohol on the particular day in question.

But I think the closer you get to the holidays, the morelikely you are that someone who's using consumer fireworks is doing so in atleast not an entirely sober state. It also helps that they're probably doing itat night where they can't see as well. They can't read things as well. They maybe doing it in a group of family. They may be allowing children to be involvedin this process. And these factors all actually overlap and coexist and kind ofparsing out how much of the respective fault or what the effect is of operatorerror.

versus defective product versus these confounding factorsyou spoke of is actually probably a not insignificant role in a lot of thesecases, right? So even if you've got user error, it does not necessarily shutthe door on you unless it's particularly egregious user error or the productisn't defective, right? It's just user error by itself. A product functionsexactly as it wants, but if I aim it at the house and it burns down the house,that's not the product's fault, right?

Yeah, you could even have a trifecta. You could have aparent who bought the fireworks and feels, you know, here, I'm a little toodrunk to set this off and gives it to a child who then misuses it by throwingit in his hand. And when it goes off, it turns out to be impermissibly loadedand have much more explosive force than permitted. So you wind up with allthree. Now, if I want to protect myself from these types of outcomes, right? IfI'm a consumer using a firework, what should I be doing? What should I do tostay safe?

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Well, there's an organization called the American PriorTechnique Safety and Education Foundation, APSEF. It's a 501c3 nonprofiteducational entity, and it's the successor to the National Council on FireworkSafety. I served on the boards of the NCSF and now serve on the board ofdirectors of APSEF. And we promulgate safety guidelines, and there are a wholelist of them. I don't think I can give them to you from memory, but the bigones are...

buy your fireworks from a reputable dealer. You know, thisis not something you want to buy from Uncle Vinnie off the back of a pickuptruck. You know, or Joe down the road who has stuff he sells. So you want areputable dealer, a commercial business that has lawful product that complieswith all state regulations. Number two, read and follow the labels. Theselabels are specifically worded according to industry standards and are one ofthe prime means.

of mitigating against harm from foreseeable misuses. All thestuff that's happened, we've already figured out what to tell you not to do.So, you know, they say the wise man learns from the mistakes of others. You canprofit by this by reading and following the labels. Number three, the personwho's using the fireworks should consume no alcohol and take responsibilityproactively for safety, making sure the viewing audience.

Is it a safe distance?

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It isn't specified in consumer fireworks the way we do indisplay fireworks where we have specific distance requirements, but a roughrule of thumb, you know, 40 feet from an aerial device, 20 feet from a grounddevice. You want to make sure that the fireworks are used appropriately on afirm level surface. They're ignited properly with a punk or a, you know,barbecue type lighter. You know, you're not using a cigarette butt.

I'll say it again, no alcohol is to be consumed by anyonehandling, setting up, or lighting the fireworks. And then you want, infollowing the directions, to light one device at a time, don't make anyalterations to it, don't put any part of your body over it. When it's done, putit in a receptacle away from the house.

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You know, one of the standards for fireworks, we test thefireworks, is that 30 minutes after use, use a thermal heat imaging gun, thereshould be no temperature above 125 degrees. But they're made of cardboard andfire generating material. Every once in a while, something smolders. If it's ina bag in your garage, it leads to a house fire. You know, and the evidence isburned up, we don't know what the temperature was, it's the bottom line.

We've learned about all these things. So we've taken stepsin firework construction to make sure the temperatures won't be impermissiblyhigh, leading to re -ignition, but follow the warning labels. I've had like aRoman candler, that sort of thing in the past, right? They're kind of small.Sometimes the paper's a little crinkly around them. You got this small printwarning label that goes on and on and on, wrapping around this thing. Am Ireally supposed to read that whole label? The standards for label.

on devices in both consumer law, the Consumer Product SafetyAct enacted in 1972, which Congress gave the Consumer Product Safety Commissionregulatory oversight, which also included, by the way, the Hazardous SubstanceAct, a separate federal statute, specifies where the label has to be, what sizeit has to be, whether it's on the outside package, on a bundle, on theindividual device, how tall the letters have to be, et cetera.

But the short answer to your question is, yes, I'm wearingreading glasses. I buy products where I have to use the drugstore 3 .25 readersto read the labels. But if the product carries risk to my vision or somethingelse, yeah, I'm going to read the label. So that's the A part. Yeah, you oughtto read the label because that label is where it's supposed to be, of its sizeit's supposed to be, to be consistent.

with industry standard and federal regulations. The secondis Roman candles. If ever do not hold in hand was applicable and foreseeablybreached. So let me give you a couple of examples about Roman candles. Numberone, if you want to use them properly, you get a bucket, you fill it with sand,you put the Roman candle in the bucket, you light the fuse. Now, what have wedone? We, I say we, I'm not part of the industry. I'm an innocent bystander. Itake plaintiff's cases as well.

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If it was in the case, I'll help you sort it out. On theother hand, what the industry has done is in Roman candles, the bottom two anda half inches is typically inert. They've left empty space because they knowpeople are going to hold it in their hands. And one of the ways you can preventa foreseeable accidental injury, for instance, there's a malfunction. The

the bottom last thing blows up in the tube instead of goingout the top. Well, if the part you could reasonably hold in your hand wereinert, we could prevent that accident. So I've watched the evolution of thisindustry over 30 years be very proactive in taking steps. Nevertheless, if youhold a Roman candle in your hand and you happen to be around the part thatisn't inert and the shell blows up in the tube,

If it's a legal permissible shell for consumer fireworks,you're going to have an ouch. Like that smart, you know, that was not a goodidea. Of course, if you're shooting at someone and you hit them in the eye,that's a whole different kettle of fish. No, I surely no one would ever hold aRoman candle and shoot colored fireballs at people from their hands. So, youknow, I worked a case again, this was on the plaintiff's side with a Romancandle. When we looked at the other

Roman candles in the package the fellow had bought. Thatflash powder stuff I told you that was really explosive, we're limited to 130milligrams. It had about 20 times that 2 .6, 2 .7 grams of flash powder. So theinjury caused a loss of several fingers instead of a scorch mark. So again,this is, you know, I've been fascinated to learn from defense and plaintiff'sattorneys and, you know, over the years as I've worked any number of cases tosee, you know, what happened, that's my job. Here's what happened.

Here's what the applicable standards are. Here's what itshould do, how it should have been made. And then watch as a participant in theproceedings to how the case is litigated to see how things play out and whatweight's given in what form. But to recap, yeah, if it's got a label on it andyou bought from a legitimate manufacturer, then that label is where it'ssupposed to be, of the size it's supposed to be to conform with regulations andyou ought to read it. And number two, you ought to adhere to what it says.

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And apparently three, you need to have your designated pyro,which really puts a damper on your fourth of July party. If you know, if youhave to stay sober all day because you're the one setting off the fireworkslater, but it does make sense. Well, that depends. So if you want another, youknow, if you want a funny alcohol pyro story, has anyone ever said no to that?There are a lot of regional fireworks clubs where enthusiasts and hobbyistsmake and shoot fireworks and put on displays. So.

One evening at one of these club events that I was inattendance, and I don't drink any alcohol at all, so not in me, this fellacomes up to me. If he's listening, he's down in Virginia. He comes up to me, hewants to light some eight inch shelves. These are big display shelves. They'rethe size of a bowling ball. And part of lighting eight inch shelves by hand incode is the operator has to be at least 75 feet away when the...

lift charge goes off, so we use a delay fuse. And the delayfuse, a lot of people are familiar with it, it's called Canon fuse or VSCOfuse. So this fellow, we'll call him Sam, that's not even his real first name.He says, well, how long should I use a piece of fuse so I can be far enoughaway when the AD shows up? Forseeable malfunction could go off in the tube,okay, instead of launch. So I held up my fingers and said, yeah, about thatmuch ought to do it.

And then he thought for me, he said, you know, I've beendrinking a few beers and you know, they're members here. And I, you know, Ithink he was one of the officers at the club. He says, I shouldn't commit abreach of error. I've been drinking. So would you mind lightening them for me?I just, you know, I want to see how they perform. And I said, okay. And so Istarted cutting some pieces of this fuse and they were this long. He goes, Ithought you said this much was enough. I said, yeah, if you're lighting them.

He felt really betrayed. I said if I'm waiting, I don't wantthat much. Just make it 75 feet. I can just light it from my position of safetyand let it burn all the way home. Yeah, but he'd been drinking and he realizedno, our rule is if you've had any alcohol, we don't want to get into what youlethalize or alcohol level, how many, no, if you've had any alcohol, you don'tshoot fireworks. And as to, you know, safety, and occasionally in Virginia,

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where the manufacturer in China put a warning label in therefor a device that could be lit by hand. It was a box of tubes, what we call acake. And when you opened it up, the manufacturer would have wiped a piece ofpavement there and said the operator should be a hundred meters away when thedevice discharges and the audience should be 250 meters away. And it could belit by hand. And the attorney deposing me said, wait a minute, how can youlight this by hand?

and be a hundred meters away when it starts to fire. I'menvisioning firing flaming arrows at it from afar. The delay fuse, this cannonfuse. And he goes, how long would that have to be for you to be a hundredmeters away? And I smiled and said, how fast can you run? These are the momentsyou live for in depositions or trial when someone just hands you the setup.

And obviously you want to make sure you had given a kind ofcardinal rule of 40 feet away from anything aerial and 20 feet away fromanything on the ground. And I would assume approximately the same distancesapply to staying away from homes or vehicles and anything where you could causethat sort of damage as well. Well, that leads to three interesting questions.Number one, I didn't say it was a rule.

you know, except in the rule of thumb. It's not promulgated.It's not an industry standard. It's not required anywhere. This is my personalopinion with many decades of experience. I wouldn't want my audience closerthan 40 feet to an aerial. I wouldn't want a more than 20 feet close to aground level effect. If I were the operator. Remember, I'm wearing safetyglasses. I'm sober. You know, I'm aware of situational awareness of wherethings are. Now, the second is.

You talked about distances, the second and third thing. Thecode for display of fireworks, NFPA document 1123, currently in the 2022edition, gives distances, including don't shoot fireworks within 25 feet of anoverhead object, a tree limb, a power line, because you could bounce back downinto the audience. Don't fire fireworks within 100 feet of a tent, within 210feet of the audience, within et cetera.

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So this is not applicable to consumer fireworks. In Chapter1 of our document for professional displays called Scope, it says it doesn'tapply to the use of consumer fireworks by the general public. Nevertheless,there may be some lessons in there that are inherent. So when I talked aboutsituational awareness, the third part is even though there's no distance given,no, you don't want to be shooting fireworks on the tarmac of a gasoline stationnext to pumps dispensing flammable fuel.

You know, where are the homes? What types of roost do theyhave? Where's your fire suppression? Do you have a hose? Do you have a bucketof water? You know, in fireworks is in so much of life, there are two types ofpeople. There are people who say, A, nothing bad will ever happen to me. And B,people who say, you know, something bad could happen. And if it does, how do Imake it of minimal problems? Type A are the people you wind up and I wind updealing with who have horrible outcomes. So yeah, you want.

Part three, no specifics, but situational awareness. Isthere a pile of rubbish you could catch on fire? Is there a kid's playground?What are you doing? So, fireworks are a product, consumer fireworks again.Perfectly okay to sell to untrained folks. Follow the rules, go ahead and usethem. But it's the same as with a lawnmower or your car. There are certainrules of the road and you want to be aware of them and follow them.

So I agree with you, think about what you're doing, whereyou're shooting the fireworks, who's around, what's around. So two last things,I think, before we wrap here. One of the things you mentioned that wasinteresting, because I've never done it or thought about it before, has to dowith what you do with kind of the remnants of your fireworks to dispose of themat the end of your show or your display or you're fooling around for yourselfat home.

to store them away from the house and I guess what, to getthem wet? Okay, you don't have to wet them down. All that should be left iscardboard. But you know, in the display firework industry, we have stipulatedminimum amounts of time. After the show, we gotta wait a certain amount of timeto approach the tubes. So one hazard after you're done the displays, therecould be something in there that didn't fire, but could fire later. So...

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We allow a certain amount of time in consumer fireworksafter you've fired the device, the multi -tube device in particular, becauseobviously if it's a one -shot aerial shell, it'll either went where it didn't.And that's part of the safety guidelines. If you light an aerial shell and itdoesn't fire, leave it alone for 30 minutes, don't pull it out, don't try tomanipulate the fuse, etc., etc., etc. So I give you a rough rule of thumb of ahalf an hour. If something misfires, don't approach it for half an hour. Kickit to the side.

You know, put a bucket, just push it aside. Now, afteryou've done, you've fired all your fireworks from a nice firm platform, youknow, concrete asphalt, three quarter inch thick plywood, whatever, and theshow's over and everybody's happy and they're going back to the rest of theevening's activities. Leave the stuff out overnight. Don't put it in a garage.You know, if you want to put it in a container, like, you know, a 30 gallontrash can, don't put it up against the side of the house.

Again, remember that type B person? Well, something badcould happen, and if it does, how do I minimize the damage? Okay, the fireworkscould smolder, could catch on fire. If the trash can is 10 feet from the house,I'll have a melted trash can in the morning. If it's in the house or next tothe house, I'm going to have a big problem. So those two things, after thefireworks are fired, give them 30 minutes before you pick them up or approachthem. And number two,

When you're finished and you've gathered up the debris andyou've waited the appropriate time, put them in a can or receptacle and leavethem outside of the house. Thanks. And I think there's one more tip out there.And I think you've half answered it already in your last answer, right? Butit's, it's the first scenario that we kind of think of where, where, where weon the consumer end of things, like, I don't know what to do, boy. I wish I'dreally thought of this. you know, you, you like the fuse, the fuse burns down,it burns in and no lift. Nothing happens. you've.

You've got a dud or we're not depending, I suppose. What doyou what what should I do? Right. If I if my fuse has burned down and now I'vegot this this firework that's just sitting there kind of kind of looking at me.OK, technical terms, that's a misfire. A dud is when the lift charge goes andthe thing goes up in the air and falls back to the ground because it neverexploded in the air. But if you have a misfire, you lit the fuse and it didn'tgo off.

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Okay, you can walk up and look at the device after 30minutes. If you didn't like the fuse, Canon fuse has this lacquer on theoutside and a lot of times people light it and it looks like the fuse isburning but it never hits the powder train in the center. So if you walk backup to the tube device after waiting your 30 minutes and you see the same inchand a half fuse sticking out, okay, you can like the fuse. Now I know the labelsay don't relight but that means after the fuse actually burned. If the fusenever burned, you're not.

relighting, you didn't light it in the first place. Now, ifyou did light the fuse and it burned into the device and didn't function, youput that device aside, you let it cool overnight, and if it still got livematerial, what I recommend is you take it back to the store where you boughtit. You take it back to the tent and say, hey, I don't need a refund oranything, whatever, maybe you do want a refund, maybe they offer you a refund,you know, if the device didn't work. But the bottom line is if it still gotexplosive material in it, you don't want to throw it in the general garbage.

really don't want to do that. So what do you do if thedevice doesn't work? You wait 30 minutes before approaching it, you don't tryto manipulate it, modify it or relight it, and then you keep it storedovernight outside of the house so if it does go off later no one is hurt, andthen you take it back to where you got it and ask them to safely dispose of itbecause all the fireworks distributors have a means to dispose of potentiallyor actually hazardous waste in a lawful and safe manner.

All of my instincts tell me to throw that thing in a bucketof water. I don't know if the chemicals in there are chemicals that are goingto play well if they're thrown in a bucket of water. But I'm concerned abouthow I'm getting it back to the person I purchased it from. It becomes theirproblem once I hand it to them. But in my car between here and there, I'm stillkind of worried about that thing back there. Well, after 30 minutes, prettymuch isn't going to go off. And if it's the next day, I guarantee you it isn'tgoing to go off spontaneously.

As to pouring water on it, it just makes it more of a messfor everybody who's got to handle it. It doesn't really do anything. Thepassage of time, as we say in medicine, tincture of time. If it didn't go offafter 30 minutes, you can pick it up and put it in the receptacle, leave itoutside the house. If it didn't go off overnight, it didn't go off when you'redriving it back to the tent or the store where you got it. All right. Hey,thank you so much for sharing your time and your expertise with us today. It ismuch appreciated and hopefully our listeners out there can...

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You know, can use what they've learned from you to stay alittle safer this 4th of July than maybe they have in the past. So thank youfor that. Thank you, Bill. It's been a pleasure working with you. And thank youout there for joining us on this episode of I strenuously object. Pleasesubscribe or hate review the podcast. Let us know if you have any questions. Wewill happily accept your questions for our mailing it in segment or for anyfeedback you have for the pot. that email address is iobject at pghfirm .com.

visit Flaherty Fartas website. That's at pghfirm .com. Weare also on Instagram at I strenuously object podcast. Enjoy your holiday andstay safe out there everyone. Until next time, some parting advice. Once thiscomes at you, you can't stop it. You can't get out of the way of it. It comesout like a bullet. So while it might look like a lot of fun, be warned, if youplay with fire, you're gonna get burned.

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