Severely burned teenager wins suit against makers of non-fire-retardant motocross clothes

Provenza v. LeMans Corp., Nev., Clark Co. Dist., No 02-A-446708-C, May 4, 2007.

While Joey Provenza, an energetic 13-year-old, was celebrating his grandfather’s 80th birthday with his family, he and his uncle and cousin went out to ride their dirt bikes. By the time the day was over, Joey had third-degree burns over most of his body because his clothing, which was supposed to protect him, caught fire. Although there is no industry standard requiring motocross clothing to be fire retardant, Joey’s attorneys were able to convince a jury that the clothing maker should be held liable.

Joey had just received new motocross clothing for his birthday and wanted to try it out while doing jumps with his bike. When gasoline spilled on him after the tank ruptured during a fall, Joey’s outfit ignited. Joey stopped, dropped, and rolled—as he had been taught—but the fire only got worse. Although the outfit was marketed as “specially designed protective” motocross clothing, its fibers melted into his skin, causing full-thickness burns to 90 percent of his body, sparing only his feet and the part of his head protected by his helmet.

Joey, at that time the youngest person to survive such extensive burns, was in the hospital for eight months. During that time, he was on a ventilator and suffered pneumonia and heart, lung, and kidney problems. Doctors did not expect him to live. He has had more than 35 surgeries, including the amputation of several fingers and toes and half of one foot because full-thickness burns assault the vascular system, causing death in the extremities. Joey has extensive scarring and, because he can only sweat in his feet and head, cannot be exposed to sunlight or extreme temperatures. His past medical expenses were $4 million, and his future life-care plan is expected to be between $13 million and $14 million. It is unlikely that he will ever be able to work, and his lost earning capacity is estimated at $2 million.

Joey and his parents sought help from attorney Joseph W. Carcione Jr., of Redwood City, California, who brought in AAJ member Robert T. Eglet, of Las Vegas, to try the case. Eglet felt he had to take the case because “what happened to Joey was horrendous. I’ve never seen a burn case this bad. But he’s a remarkable young man. Despite all he’s been through, he still has a positive outlook.” The attorneys, on behalf of Joey and his parents, sued the manufacturer, Thor MX, and its parent company, LeMans Corporation, alleging the clothes were defectively designed and unreasonably dangerous.

Right away, there was a huge obstacle to the case. None of the manufacturers of motocross clothes make them fire retardant. So Eglet had to try the case on the theory that although it is not the industry standard, it should be. “The ordinary consumer would expect that when they buy ‘specially designed protective’ motocross clothing, it will be fire retardant,” says Eglet. “The gas tank is plastic and is right over a very hot engine. It doesn’t take a rocket scientist to figure out there may be a fire hazard.”

Despite the challenge, Eglet felt they had a strong case. The manufacturer makes children’s pajamas that by law must be fire retardant. In fact, the pajamas mimic the motocross outfit in look and design. “So they already had the technology and ability to make them fire retardant,” Eglet says.

A complicating factor was that plaintiffs originally also sued the dirt bike manufacturer, Yamaha Motor Corporation, alleging the bike was defectively designed. Yamaha contended Joey’s father had spoliated evidence that might have proved the fire started because he had hotwired the bike, exposing wires. The trial court dismissed the case against Yamaha. At trial against Thor and LeMans, defendants argued that evidence of the cause of the fire and the spoliation, as well as the possible design defect of the bike, should be introduced. Eglet successfully argued that none of that was relevant because the parties had stipulated to the facts that Joey was riding the bike and a fire started. So the only question here was whether the clothing was defectively designed.

During the trial, Eglet relied heavily on experts. He brought in Gordon Damant, of Sacramento, California, to talk about forensic engineering and clothing, and fire expert Eldon Knuth, of Encino, California. He used their testimony to prove to the jury that the clothing actually enhanced Joey’s injuries. Had he been wearing jeans and a T-shirt, Eglet argued, Joey would not have suffered third-degree burns—even his canvas tennis shoes provided better protection, as Joey’s feet were not burned. But the clothing’s material burned much more easily and melted into Joey’s skin. Eglet also called several plastic surgeons, a life-care planner, and a vocational rehabilitation specialist to testify about the extent of Joey’s injuries, and members of Joey’s family to talk about his ordeal.

The jury was convinced that the industry should make its outfits fire retardant. It awarded plaintiffs about $41.52 million, mainly for past and future pain and suffering. Eglet anticipates that about $11 million more will be added in prejudgment interest, as well as unspecified attorney fees and costs. Defendants are appealing.

Although Joey and his parents are pleased that he received some measure of justice, Joey is in constant pain and expects more surgeries in the future. But Eglet says there may be one positive outcome of the case. “We hope and believe that manufacturers that design this ‘protective’ clothing will start making the clothes fire retardant so nothing like this happens to anyone else.”

COURTNEY L. DAVENPORT