Johnston was injured when he used a propane gas tank manufactured and distributed by Ferrellgas. The tank was placed in circulation in 1999, requalified in 2017, and was within its requalification date at the time of the incident. Ferrellgas replaced the tank’s valve in 2002, and it refilled and inspected the tank in February 2019. At that time, Ferrellgas placed a blue cap on the tank’s valve and shipped it to Lowe’s, where it sat in an outdoor display until Johnston purchased it approximately five months later on July 24, 2019. Two days later, Johnston attempted to connect the tank to his Char-Broil grill and pushed the igniter, but nothing happened. After he hit the ignitor a second time, a flash fire occurred.  A jury found Ferrellgas 93% for causing the burn injuries suffered by plaintiff, but the U.S. Fifth Circuit Court of Appeals reversed.

“The Johnstons argued at trial that the tank was defective because it had a bad face seal that leaked propane gas. Fatally, no expert or witness could identify when this purported defect arose. The Johnstons’ expert, Scott Buske, opined that the face seal probably dried out, degraded, or shrunk at some point, but he could offer no opinion on whether the alleged defect existed when the product left Ferrellgas. He initially agreed there was no reason to believe the seal’s condition had changed from the time Ferrellgas placed the blue cap on the valve to when Johnston removed it shortly before the incident. But this statement proved merely speculative, as he expressly and repeatedly conceded on cross-examination that the seal does not always malfunction and that he could not say it was defective when it left Ferrellgas.

“We are unpersuaded by the Johnstons’ attempt to avoid this evidentiary deficiency by relying on Texas’s sealed container doctrine, which states that ‘when it is shown that the product involved comes in a sealed container, it is inferable that the product reached the consumer without substantial change in the condition in which it was sold.’ They argue this inference is permitted because there was evidence that the seal, after being inspected by Ferrellgas, was covered by a blue cap before it left the facility; Buske agreed during trial that there was no reason to believe the condition of the seal had changed before Johnston removed the cap; and Johnston testified he bought the tank with the blue cap on it two days before the incident.

“Although all inferences are to be drawn in favor of the Johnstons as the nonmoving party, the fault in their argument lies in the fact that the propane tank does not come in a sealed container – nor is the blue cap on the tank’s valve a seal. Rather, the cap is placed over the valve on the tank containing the seal; it is not a seal itself. Further, the cap has indentations that would allow contaminants to enter. Moreover, the Johnstons did not produce evidence showing why the blue cap should be considered a seal. ‘The sealed container presumption, therefore, did not arise as a matter of law – particularly given the Johnstons’ case theory that the face seal may have ‘become expired’ in ‘however many months it took from the time it got from Blue Rhino Ferrellgas to Mr. Johnston.’

“We agree with our brother in dissent that jury verdicts deserve substantial deference and we do not take lightly the decision to reverse them. But this Court cannot affirm if, as here, there is insufficient evidence as a matter of law to support a jury finding that the tank suffered a manufacturing defect. As we explained, the circumstantial evidence on which the Johnstons rely does not cure the want of proof that the tank was defective when it left Ferrellgas’s possession. This is not a res ipsa case. Indeed, the Johnstons did not advance that theory of liability before the district court or before us. In sum, the Plaintiff’s expert admitted that he could not say the tank was defective at the time it left Ferrellgas, making his prior comments about the tank’s condition at that time pure speculation; the tank functioned properly before Johnston used it; the tank and seal are not sealed containers; and both parties agree Ferrellgas successfully refilled the tank with gas under high-pressure months before the accident. There is no reasonable basis on which the jury could find the Johnstons met their burden.”


Johnston v. Ferrellgas, Inc., 96 F.4th 852 (5th Cir. 2024).