Calais man sues maker of foot-warmer product > Burn led to amputation, disability

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BANGOR — Galen Grass of Calais had watched TV for an hour one evening in February 1996, when he stirred from his chair. A sticky sensation in his left foot halted his trip to the kitchen. Sitting down again, Grass, then 61, removed his slipper which contained one of two small chemical heat packs he had bought to warm his feet. When he tried to remove a wool sock from his left foot, part of the sock stuck to his skin.

Underneath the mess, he found a blistered big toe oozing blood. He realized he had been burned by the heat pack.

The discovery set off a downward health spiral for Grass, a former instructor at Washington County Technical College. Events culminated in October 1997, when infection caused by the burn forced a below-the-knee amputation of his left leg.

The inexpensive foot warmer ruined his livelihood and his health, according to Grass and his attorneys, who filed a lawsuit against the heat pack’s manufacturer this month in federal court in Bangor.

Called “The Foot Warm-up,” the tiny heat pack is manufactured by Heatmax Inc., an Atlanta-based firm. Commonly found in area drugstores, it consists of ingredients that include iron powder, water, salt, vermiculite and activated charcoal, which, when shaken, chemically react together to produce warmth.

Each 5-by-7-inch package contains two foot warmers that, the wrapper says, will heat to a maximum of about 110 degrees Fahrenheit under proper use. If used outside a shoe, in a “free air-flowing environment,” the package states, the warmers can heat to a searing 165 degrees.

Grass, who is diabetic, may find his case hinges on whether a judge or jury believes he was using the pad properly. It also may hinge on Heatmax’s contention that since Grass is diabetic, he should have been aware of the risks involved in using heat packs on his feet. Grass contends that the injury had nothing to do with his diabetes, a condition diagnosed about 10 years ago.

The tiny foot warmer is available in Rite Aid stores in Bangor. They sell for 99 cents each. Grass said he had been out plowing snow, grew cold, and bought six of them on the recommendation of a clerk at the local Rite Aid store in Calais the day he was burned.

When Grass shook the individual foot warmers, which measure about 1 1/2 inches by 3 inches, and put them inside his moccasin slippers, he had no idea he was putting his limbs in danger, he said. Until it was too late.

“One of them was hotter than hell,” recalled Grass of the foot warmer, which did not break. “The other one was all right, but it was too late for my left big toe.”

Because part of the sock had stuck to his injury, immediate partial amputation of the left big toe was necessary, he said. After Grass spent 18 months seeking medical attention and dressing the unhealed wound daily, doctors decided to amputate the entire toe in September 1997. Within two weeks, Grass was back in the hospital with an infection and had his left foot amputated. A week later, surgeons stemmed the massive infection when they amputated his left leg just below the knee.

“The worst day in my life was when I bought those things,” said Grass, who has been virtually house-bound since his surgeries last fall.

The chemical foot warmer apparently has been involved in other burning mishaps outside of Maine. Two incidents caused serious injuries to users in Oklahoma and Pennsylvania, according to information from the Association for American Trial Lawyers in Washington, D.C. Heatmax, however, maintains the foot warmer is comfortable and safe if used properly, according to the list of cautionary statements on the back of the package.

Heatmax President Daniel Yim did not return telephone calls on the lawsuit late last week. He did write a letter to one of Grass’ attorneys several months ago and acknowledged receiving Grass’ complaint. At the time, Yim requested medical information on the Calais man.

The lawsuit filed Feb. 13 in U.S. District Court may be of interest to skiers and other outdoor enthusiasts who use foot warmers, according to one of Grass’ attorneys. It details events after the fateful purchase that allegedly ended the career of Grass, a property manager who also worked as a heavy equipment instructor at Washington County Technical College.

The product “put me right out of commission,” said Grass, who retired at age 62, three months after the injury.

“I was planning to work to 65,” said Grass. Divorced, Grass had his son move in with him when it became apparent he would not be able to tend to his own needs.

Grass, now 63, is suing Heatmax for selling a product so “unreasonably dangerous” that it caused his injuries, the lawsuit states. He also is suing the company for negligence and damages that include loss of earnings, loss of future earnings, loss of enjoyment of life, and physical and emotional pain and suffering.

No money amount has been tacked to the lawsuit, although civil suits must involve claims exceeding $75,000 to be processed in federal court.

The lawsuit is unusual, according to attorney Mark Randall of Portland, because it describes horrific physical damage sustained by his client as a result of using an over-the-counter item that retails for less than one dollar.

John Churchill, a Calais attorney who was the first to sign onto Grass’ legal case, said he is not aware that the foot warmers are on any safety-hazard list. However, Churchill said his research on the Internet revealed Heatmax had two infant warmers recalled in 1995 for burning customers. One was an infant crib warmer and the other was called an infant heel warmer, Churchill said.

“There have been quite a few cases in the past of burns on people using these packs, but none I know of are as serious as Galen’s case,” said Churchill.

The case was filed in federal court because it deals with an out-of-state manufacturer that ships its products to outlets throughout the country.

Contacted by telephone, an executive at Heatmax declined to comment on the case. Uma Ramji, who identified herself as the director of complaints and quality assurance, was told of the Grass lawsuit and responded that she “had never heard of such a complaint” in connection to the foot warmer.

Other states have heard of complaints regarding foot warmers, according to Randall. Cases of burns have been recorded since 1992 in a region from the Midwest to the Northeast, according to information from the Association of Trial Lawyers of America. Randall commissioned the group to look into foot warmer injuries as part of the work on the Grass case.

Heatmax’s insurer, NTA Inc. of Omaha, Neb., hired Bangor attorney Shaun Lister to defend the complaint before it turned into a lawsuit this month. Lister did not return calls regarding the case; however, a letter he wrote last June to attorney Churchill declares adequate the warnings on “The Foot Warm-Up” packaging that allegedly guide consumers in its safe use.

Lister also questioned Grass’ judgment in using the product, since some diabetics develop peripheral neuropathy, an ailment that makes their extremities insensitive to heat, cold and other sensations.

Nine “cautions” are listed on “The Foot Warm-Up” package. Of particular interest, Lister wrote, is the sixth statement that warns people with sensitive skin or reduced skin sensation to heat to avoid using the product. There is no warning that specifically mentions diabetics on the packaging.

Statement No. 6 “adequately advises users of the risk” of burns, according to Lister’s letter. The packaging advice was “not a substantial factor in causing his [Grass’] injury,” Lister concludes.

Grass, however, was not advised by any doctor that he had developed loss of sensation, according to Churchill. Grass developed adult-onset diabetes about 10 years ago but kept the condition under control with medication.

“His diabetes was stable,” Churchill said. The product label at minimum should have warned diabetics not to use it, Churchill said.

The lawsuit awaits a formal reply from Heatmax officials. Then, if no settlement is reached, it will proceed to the discovery process, when evidence is produced for trial. It could be ready for trial by next fall, according to court officials.