Jury finds for burn victim - News

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May. 09, 2007
Copyright © Las Vegas Review-Journal

Jury finds for burn victim

Teenager awarded $41.5 million in case against clothing manufacturer

By PAUL HARASIM
REVIEW-JOURNAL

Joseph Provenza, center, talks about the burns that nearly killed him and the $41.5 million a Clark County District Court jury awarded him Friday. His mother, Kim and attorney, Robert Eglet, listen.

As the weeks passed in 2001 Joseph Provenza's mother, Kim, kept hearing the same thing from doctors: "People burned like your son don't live."

Not until the 13-year-old Pahrump youngster was taken off a ventilator seven months after his horrific motorcycle accident -- one that saw him suffer third-degree burns over 90 percent of his body -- did she think his death wasn't imminent.

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"He came down in the hospital with pneumonia, heart and kidney problems. You name a problem and he had it," Kim Page said. "He's already had 35 surgeries and he needs more. He goes to the Shriners Burn Center in Sacramento off and on."

On Tuesday, Joseph Provenza, now 19, walked with his mother and sister into the law offices of Las Vegas attorney Robert Eglet. Four days earlier -- exactly six years after the May 4, 2001 accident -- a District Court jury had awarded him $41.5 million in a personal injury case filed against the manufacturer of the clothing he was wearing, which Eglet argued failed to protect him in the fire.

In Eglet's Fourth Street office, Provenza's badly damaged hands shook. Winces of pain crossed his face, particularly on his heavily scarred right cheek.

And his near future appears to be about more pain.

"I've got to get part of a foot amputated on May 16," he said, closing his eyes. "I know I need it."

Eglet, a senior partner with the law firm Mainor Eglet Cottle, persuaded a jury that the LeMans Corporation of Wisconsin should have made its special motocross clothing fire retardant.

Attempts to reach jurors about the verdict they delivered were unsuccessful.

Wayne Mason, a Texas attorney hired by LeMans, said an appeal of the verdict "is absolute."

"The clothing was never advertised as being fire retardant," Mason said.

That doesn't matter, Eglet argues.

"People expect that when you buy special clothing for an endeavor where you're sitting on top of a gas tank and hot engine that it would be fire retardant," Eglet said. "You have to remember that this company already makes fire-retardant pajamas for children ... and those pajamas look like a motocross outfit."

Provenza was celebrating his grandfather's 80th birthday when the accident happened. Riding a Yamaha dirt bike with his uncle and cousin in the Pahrump area, he fell after making a jump. When the bike hit the ground, Provenza was soaked with fuel from a gas tank that apparently ruptured, Eglet said.

"I can't remember what happened," Provenza said. "I really can't."

The heat from the still running engine caused the fire to ignite.

"He ran and he kept starting fires in the underbrush," Eglet said. "Instead of what he was wearing being protective clothing that would allow the gas fumes to burn off, the cotton shirt and the nylon polyester pants he was wearing caused the fire to spread." Provenza was taken by helicopter to University Medical Center. After nearly three months there, he was transferred to the Shriners Hospitals for Children -- Northern California, in Sacramento.

During the trial, renowned Las Vegas plastic surgeon Dr. William Zamboni testified that Provenza was, to his knowledge, the youngest boy ever to survive after suffering third-degree burns over 90 percent of his body.

"I don't know how to tell you how much it hurt," Provenza said.

Provenza's sister Brittany, 22, cried as she described her brother's pain.

"When he came home, mom and I had to change his dressings," she said. "We had to scrub off the dead skin. He cried when he knew it was time for us to do it. I knew I was helping him but it was so hard."

Defense attorney Mason acknowledged jurors were obviously moved by Provenza's condition. But he believes the jury should have been able to hear evidence that resulted in District Court Judge Elizabeth Gonzalez dismissing Yamaha as a defendant in the case in 2006.

In the original lawsuit, Eglet had argued that the Yamaha dirt bike had defects in its fuel tank assembly.

Mason said that prior to the accident, the bike had been hot-wired to get it started, an action that he believes may have later caused the fire.

In her decision to dismiss Yamaha from the suit, Gonzalez referred to a deposition given by Provenza's father, Michael.

"Michael Provenza testified he thought the bypass wire might be the cause of the accident and he believed this evidence of modification would interfere with his son's potential lawsuit," her dismissal order stated. It continued: "Provenza admits that he intentionally and knowingly removed the bypass wire placed on the coil wire and threw it on the ground in the storage unit prior to the Yamaha defendants' opportunity to inspect the condition" of the bike.

The judge also referred to other failed efforts to preserve the bike "against spoilation," noting there was a question of whether this was "intentional, knowing, willful or simply negligent." As such, she found, Yamaha could not expect "a fair adjudication on the merits" of the case.

Mason believes that if jurors had heard what Michael Provenza had done, they would have come to a different verdict.

"Gasoline came out and hit the hot-wire and that's how the fire started," Mason said. "What happened is tragic but the father destroyed evidence."

Eglet said that what Michael Provenza did, or why the fire started, has no bearing on what he sees as the central fact of the case -- clothing supposedly specially designed for motocross wasn't fire retardant as it should have been.

"The reason why pajamas for children were forced to become fire retardant by the federal government was because of cases just like this," Eglet said. "People have a right to believe that clothing supposedly specially designed to wear on a hot running bike is fire retardant."

Eglet refused to say how much of the $41.5 million award attorneys would receive. He did say the normal contingency fee ranges from 33 to 40 percent of the verdict.

The jury stipulated that the money be parceled out this way: $4,266,600 for past medical and related expenses; $7,115,370 for future medical and related expenses; $2,029,482 for future loss of earning capacity; $17,000,000 for past pain, suffering and disability; and $11,000,000 for future pain, suffering and disability.

Joseph Provenza isn't so much concerned about the money.

"I just wish I didn't ache," he said.

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Please enter your name Name: Please enter your email Email: Please enter a comment COMMENTS : (word count limit is 300) You have reached the maximum number of words allowed Current Word Count: Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background. Seronica wrote on July 19, 2008 07:45 PM: OWWWWWWWWWW!!!!!!! amoure wrote on December 03, 2007 06:47 PM: In my personal opinion...all of these people are mentally retarted and need to realize that they would do the same thing if they were in joeys shoes!!! Mabey it was not the motocross companys fault but I personally give Joey and his family props for being able to pull that off and especially yamaha should have just donated the money instead of them having to sue them! If yamaha or the motocross company would have just offerd the money they probably wouldnt have to pay so much soooo that is what they get for being sooo stingy! Do you think millions of dollars in medical bills and joey having to suffer and go through surgery after surgery is fair??? You have got to be kidding me! Every one does stupid things in thier life but every one deserves a second chance! Joey just happend to live through it and i think people are just jelous that they dont get 41 and a half million dollars! Veronica wrote on May 30, 2007 08:21 AM: I just had to reply to this article. Has this person been riding for a while? Any person that participates in the sport of dirtbike riding or motocross, even on a recreational level knows that the clothing that is sold as protection is in no way advertised as being fire/flame retardant. "People expect that when you buy special clothing for an endeavor where you're sitting on top of a gas tank and hot engine that it would be fire retardant," Eglet said. If this is the case in regards to sitting on top of a gas tank and hot engine, does this mean that I have grounds for sueing anyone that manufactures my everday clothing because I drive a car? The clothing that are recommended to wear are to reduce (notice I didn't say prevent) the severity of injury in the event of an accident by offering protective covering that is more durable that your average, everday clothing. It is cases like this that make it almost impossible to for a valid lawsuit to get a "day in court". Maybe I should sue the airbag manufacturer for breaking my arm in my auto accident, forget that it saved my life or the person that makes the seatbelt that stopped me from slamming into the windsheild because it broke my collarbone. These are just two examples of things that are designed to save our lives, but that in and of itself pose potential risks to the user. Someone has definitely been blinded by the thought of a large payday and unfortunately they were correct. The person that started this whole tragic ball rolling was the person or persons that hotwired the bike in the first place. I wonder how they would feel it the bike manufacturer were to sue them for defamation of character. There would I think be a very strong possiblity that part of that $41.5 million could be used to pay damages/restitution. brady wrote on May 25, 2007 08:26 AM: america is broken Eric wrote on May 18, 2007 11:47 PM: I think this young man is lucky to be alive and I cannot imagine the pain he must be suffering every single day. With that said, the jurors that awarded the plaintaff anything from the manufacturer of the motocross clothing have raped you, me and the judicial system. The clothing was cotton and nylon and designed to prevent injury from contact with the dirt, at best. No sane person on earth, with the exeption of these idiotic jurors, would expect this rider's clothing to prevent a fire after being soaked in gasoline and then lit on fire(although this would be a great invention). The cause of the fire was probably caused by the person who "hotwired" the bike and left the bike in a dangerous condition, but I guess this rider's irresponsible dad was $40 million short. My hope is for the following: the child comes out of this healthy, the verdict is overturned, and the person who "hotwired" the bike goes to jail. Jarrett wrote on May 18, 2007 06:32 AM: This is an absolutely wonderfull example of why the american legal system is inherently flawed. Nowhere on the planet should any one person or company be held liable for someone else's mistake because of an assumption. This is the exact opposite of Darwinism - (even though I feel for the boy) the idiots are supposed to be weeded out, not be given millions of dollars in settlements. If he had this bad of an accident with a dirtbike, imagine how he will do when he can afford to buy a lamborgini! Shame on the parents for being too weak to accept the blame for failing to protect their child! Chris wrote on May 17, 2007 08:36 AM: It's cases like this that promote the perception that burn injured people have received some large settlement and therefore are independently wealthy. I don't have any details of the lawsuit, but I'd think any reasonable person would and should expect that clothing sold specifically for use while engaging in a dangerous activity affords protection that is not found in regular garments. Chris http://www.aboutbeingnormal.com Errin wrote on May 16, 2007 06:44 AM: NEVER in my 37 years have I heard of such an absolutely ridiculous lawsuit. To "expect" motocross apparel to be fire retardant is assinine. The rider is not enclosed in a cage such as an automobile racer is. The risk of fire is almost non-existant. There has never been nor should there EVER be an expectation for ANY clothing worn on a motorcycle to be "fire retardant." Kent wrote on May 15, 2007 05:02 PM: No wonder the country hates lawyers. Fire retardant motocross gear? Get real. I am sorry that this young man suffered as he did, but the risk of a fire starting on a person's clothes from a dirt bike crash are zero to nonexistent. Let's not forget the fact that no material is fire-retardant when soaked in combustible liquid ie: gasoline. Dirt bike riding can be a dangerous sport. No one forced him to climb on that bike, start it, and ride it, let alone take it over a jump, where he unfortunately crashed. I would think he crashed pretty hard, meaning he was going pretty fast (taking the risk of crashing!) when the fuel tank ruptured. I've been riding off road bikes for almost 30 years and have never seen a gas tank rupture and spill enough fuel to start a fire. In no way was this, or any other motocross gear, designed or advertised to be fire retardant. NO gear can protect someone from every possible injury. I hope LeMans' appeal is successful. Paul wrote on May 13, 2007 12:46 PM: Utter rubbish - pyjamas are made fire-retardent because of the risk of contact with electric or gas fires, or any kind of uncovered flame. The risk of any kind of fuel ignition with a motocross bike is so miniscule as to be laughable - I've never seen it happen. How many cases do you read like this? First one I've seen. How many people ride ditbikes? Millions, every weekend. Read All Comments