Attorneys Obtain $6 Million Verdict in Negligent Misrepresentation Case Against Intertek

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Edit: (05/20/2015) This verdict was ranked in the Top 20 PA Verdicts of 2014.

The hard work of Attorneys Brendan Lupetin and Greg Unatin of Lupetin & Unatin paid off when on March 7, 2014 a Pittsburgh jury returned a verdict of $6 million dollars on behalf of their client, Brand Marketing Group, L.L.C. (BMG).   BMG was represented in court by its principle, David Brand, an inventor and small distributor whose company was crippled after a subsidiary of the world’s largest  product-testing company, Intertek Testing Services,  botched the testing of his newly unveiled space heater – the Thermablaster.

BMG finally realized the benefit of a relationship cultivated with Ace Hardware since 2009 when in mid-2011 Ace decided to place an order for 4000 Thermablaster heaters.   Meanwhile, Interetek, the self-described “leading provider of quality, safety, testing, inspection and certification” held out to Mr. Brand that he should trust their years of knowledge and expertise to assure the Thermablaster met the applicable safety standard and would be safe for homes across the United States.  However, and unknown to Mr. Brand, the particular standard applicable to his heater was a standard which Intertek had never tested to before.

In July of 2011, engineers from Intertek’s lab in Guangzhou, China released the results of safety testing showing that the Thermablast heaters complied with the ANSI requirements.  Mr. Brand was presented with the test results while he was inspecting the factory where the heaters would be mass produced.  One day later, Mr. Brand ordered 5,000 heaters.  Soon the heaters were mass produced to the specifications approved by Intertek’s engineers and shipped to Ace Hardware franchisees across the United States, and other customers as well.

However, after only a few weeks of sales in retail stores throughout the country, a competitor of Brand contacted representatives from Ace Hardware and alleged that, in fact, the heaters did not meet the applicable safety standard.  After a lengthy investigation, Intertek’s chief engineer revealed the Thermablaster safety testing was incomplete and inaccurate.  Intertek was forced to admit its testing of the Thermablaster was botched due to a clear lack of experience, training and knowledge on the part of its engineers in China.

In the aftermath of these revelations, BMG’s budding relationship with Ace started to fall apart.  That’s when David Brand contacted Brendan. “Of course he was concerned about the order with Ace Hardware, but we were all horrified at the potential harm and injury that may have resulted from this false representation,” explains Brendan. “This is a company whose name you see on the back of so many products in the U.S. And the further we got into the case, the more we realized that this wasn’t just an isolated instance with this one product.”

Eventually, Ace Hardware filed a lawsuit against Brand to recover the cost for its purchase of nearly 4000 heaters which it could no longer sell.  Unable to defend the claim, Brand was slapped with a judgment of over $600,000 in favor of Ace.  Through no fault of his own, Brand’s long sought-after relationship with Ace had ended for good.

Brendan filed the lawsuit against Intertek Testing Services, N.A.  in November 2012. Fighting against a huge corporation with a high-powered legal team was a challenge in and of itself. “They filed every motion possible,” says Brendan. “We had to deal with defense tactics like sending us 4,700 pages of documents to review a day and half before we were scheduled  to depose Intertek’s chief engineer.” In addition, Intertek filed several counterclaims against Brand, including claims of fraudulent misrepresentation and concealment and trademark infringement.

The attorneys also faced the challenge of presenting an extremely complex case in a clear and concise manner that would resonate with a jury. “We were dealing with lots of facts and details, a complicated cause of action—negligent misrepresentation—and a situation where there were thousands of miles between Brand and many of the key events,” explains Greg. “We knew it was important to focus our efforts on the basic concept of public safety.”

The trial lasted nearly three days, and was followed by deliberations that lasted almost as long.  In the end, it was clear BMG’s attorneys had presented a compelling case. The jury awarded Brand $725,000 in past damages, $320,000 in future damages and $5 million in punitive damages.  All of the counterclaims were dismissed.

In their work with Lupetin & Unatin, Brendan and Greg are put to the task of helping people who have suffered severe injury pick up the pieces and recover meaningful compensation for what they’ve lost and the little they are left with.  In this case, they held  a large corporation fully accountable for its reckless conduct to not only help a small business owner regain his lost dream, but to help  protect the public  from the  same type of injuries suffered by so many of their other clients.  The outcome was a reward impossible to place a value on.

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