()

A jury has awarded $6 million to a Pittsburgh company that claimed the China-based labs of a product-testing firm did not correctly test space heaters to ensure compliance with American safety standards.

In Brand Marketing Group v. Intertek Testing Services N.A., a case in the U.S. District Court for the Western District of Pennsylvania, a jury handed up the $6 million award March 7 in favor of plaintiff Brand Marketing Group, a company that markets and sells consumer products.

Of the about $6 million, the jury awarded Brand $725,000 in past damages, $320,000 in future damages and $5 million in punitive damages.

Brand brought suit against Intertek Testing Services N.A., alleging that Intertek falsely represented itself as an expert in American National Standards Institute (ANSI) product-testing, when in reality, the employees in its Guangzhou, China, testing facility were not qualified to perform testing on the heaters Brand provided.

According to the plaintiff’s pretrial memorandum, emails written by Intertek officials revealed that engineers in its Chinese testing facility did not possess the requisite knowledge to test the Thermablaster heater because they lacked proper training and experience.

“Clearly one cannot truthfully claim to be an expert in something one has never before done,” court papers said.

On April 26, 2011, Brand received purchase orders for Thermablaster heaters from Ace Hardware Corp., according to court papers.

Shortly thereafter, Brand outsourced the testing of the Thermablaster to Intertek after Brand’s owner was provided with a promotional flyer and Web information regarding Intertek’s expertise in product-testing at a hearth, patio and barbecue expo. According to court papers, Intertek claimed it could test products to “any ANSI standard.”

The engineers at the Guangzhou lab determined that the Thermablaster complied with all ANSI requirements, court papers said, and forwarded the test data to the manufacturer, China-based Reecon M&E Co. Ltd.

According to court papers, Brand ordered 5,000 heaters from Reecon upon learning of the Thermablaster’s compliance. The heaters were then shipped to the United States.

However, the plaintiff alleged that the results of the safety tests and the test report were false.

Allegations of noncompliance from one of Brand’s competitors, ProCom, as well as Ace prompted Intertek to undertake an internal investigation, which ultimately revealed that the Thermablaster heater did not comply with ANSI standard Z.21.11.2b.

The plaintiff pointed to an email sent by Intertek’s chief engineer of hearth products, Rick Curkeet, that according to court papers said, “This was obviously GZ’s first project related to ANSI Z.21.11.2b. Clearly training and experience are lacking.”

Additionally, court papers said that the project’s overseer, Graham Moxon, “stated that the Guangzhou engineers incorrectly approved the Thermablaster due to ‘lack of knowledge of the product, training and interpretation of the specification.’”

Curkeet testified that none of Intertek’s laboratories had ever tested a product to ANSI Z.21.11.2b before the Thermablaster, court papers said. In a subsequent email from Moxon on March 8, 2012, Moxon wrote that the engineers misinterpreted the ANSI standards in question.

“Worse yet, the test data sheet used by the Guangzhou lab in testing the Thermablaster was for the wrong standard,” the plaintiff argued. “Thus, instead of being tested to the requirements of the correct safety standard, the Thermablaster was tested to irrelevant standards, including for ‘Combustion Open Top Broiler.’”

According to court papers, Ace requested a refund for the purchase of the heaters and eventually filed suit against Brand. Ace won a default judgment of $611,060.

In the defendant’s pretrial memorandum, Intertek claimed that Brand sold the Thermablaster before Intertek certified the product and that Brand never had authorization to sell the heaters with Intertek’s Electrical Testing Laboratory (ETL) mark on the products.

“Intertek N.A. has never authorized [Brand] to use any Intertek N.A. certification mark for any purpose,” the defendant argued. “Intertek N.A.’s ETL mark was used without authorization on [the] plaintiff’s product manual for the Thermablaster heaters and a rating plate label affixed to the product itself prior to issuance of the ATM,” or authorization to mark.

The defendant claimed that the heaters were “designed, manufactured, contracted for sale, sold, paid for, shipped to the United States, and delivered to customers prior to the issuance of the ATM or otherwise prior to any certification from Intertek N.A. that the Thermablaster product complied with the tested ANSI standards.”

According to the plaintiff’s court papers, an email from Moxon said that “two full sections from ANSI Z.21.11.2b were incorrect due to misinterpretation.”

Intertek’s attorney, Stephen M. Houghton of Dickie, McCamey & Chilcote, and did not return a call seeking comment.

Brendan Lupetin and Gregory Unatin of Meyers Evans & Associates in Pittsburgh represented Brand.

Lupetin said that the case illustrated “scary and systemic” problems within Intertek, especially since the company also tests a wide range of consumer products.

“They permit tests done by engineers in other countries [who] are literally not able to interpret U.S. English safety standards,” Lupetin said. “These poor engineers … their first language is Chinese, yet they’re left to interpret these technical, English-written standards, and Intertek doesn’t provide anything to help them with interpreting them.”

P.J. D’Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDAnnunzioTLI. •