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Two years later, in April 2000, a customer e-mailed Jacuzzi saying "the family bathtaker is being treated for a skin infection, which the doctor is attributing to use of the new whirlpool tub." A secretary at Jacuzzi responded, "This is not a common occurrence with whirlpool baths." After giving the tub owner the company's standard cleaning instructions, the secretary suggested the customer "check with a dermatologist" if the rash persisted.
Five months later, another woman e-mailed the company saying that she developed a skin infection the morning after using a Jacuzzi tub at a hotel.
"There are a lot of people who are quote-unquote pissed off about these tubs," says Ted Lyon, who is working on the litigation with Malesovas' firm. "Once they know about the problems, they don't use their tub anymore."
Lyon, who won a $376 million wrongful death verdict against Koch Industries two years ago in a pipeline explosion case, has done much of the heavy lifting in the case against Wisconsin-based Kohler, the second-largest company in the business. Since the late 1970s, the privately owned company has sold more than 700,000 jetted tubs.
Through an ad in the local paper in Canton, 50 miles east of Dallas, Lyon and Malesovas found a 75-year-old widow who has owned a Kohler tub for 15 years. They initiated a class-action suit against the company on her behalf, as a representative of Kohler owners nationwide. While the company's lawyers have complained bitterly about those tactics, which, in effect, finagled a sympathetic venue for the plaintiffs, the suit has withstood several years of defense challenges. And Lyon is now gleeful about the prospect of trying the case before a jury in rural East Texas. "The people of Van Zandt County are pretty sophisticated in terms of putting a whupping on big corporations," he says.
The big problems with the tubs, the plaintiffs contend in plain, East Texas language, is how to keep the guts, the hidden piping, from turning into something akin to the drain pipe in your shower.
Jacuzzi, for instance, says on its Web site that the tub must be purged every three to four months to remove "bath residue." The company recommends filling the tub with hot water, adding four tablespoons of low-foaming detergent and running the jets for five to 10 minutes. The tub then should be drained, refilled with cold water and run for another 10 minutes. The procedures use 60 to 100 gallons of water, depending on the size of the tub, and take at least 45 minutes to perform.
Kohler and Lasco give basically the same instructions but tell owners to add four ounces of household bleach and clean the tub much more frequently. The two companies say this "periodic maintenance" should be performed at least twice a month.
"I don't know how many people know that they have to spend an hour every other week cleaning their tub or the warranty's no good," Malesovas says.
Lasco instructions also say failure to perform the procedures "may cause safety and/or health problems." The health warning was added in 1999, court files show, right around the time Malesovas' firm filed suit, he says.
Representatives of all the companies testified in depositions that they have never subjected their recommended cleaning procedures to scientific analysis, and nowhere in their operations manual do they specify exactly what problem the cleaning is supposed to remedy.
Malesovas says he believes the companies are aware of bacteria buildup because they all warn consumers against using vegetable-based shampoos, bath oils or cleaning agents while running the tubs' jets. In early versions of its user's manual, Kohler cautioned consumers, "Do not use cleaning agents that have a vegetable base: They can cause bacterial growth." In recent years, though, the "bacterial growth" warning was dropped.
Scott Knapp, Kohler's top whirlpool engineer, testified in a deposition that "some people" at the company "maybe objected to that [warning] as overly harsh." Asked if the company was concerned about scaring people away from buying its whirlpools, Knapp replied, "It's possible."
An internal Kohler study unearthed in the suit concluded that cleaning products and bath soaps containing vegetable oils support the growth of bacteria and should not be run through the pipes of a whirlpool tub.
Malesovas and Lyon are also zeroing in on what the companies have told consumers who write in with complaints of black crud. In many cases, Jacuzzi representatives told consumers their problem appeared to be algae, but Weeks said in an interview that the answers his company gave to consumers were only guesses. "After I saw some of these things, I became unhappy with them," he says of the company's responses to the complaints. "We didn't know whether it was algae. Our customer-service people don't receive training in biochemistry."
At the same time, Weeks declined to specify what the black stuff is, saying it could vary from case to case. He says the company's cleaning methods--including advice to use an algicide when the black gunk appears--have been developed over 20 years. And while they haven't been scientifically tested, "they seem to solve most people's problems."
How do they know?
The customers stop complaining, he says.