Michael Hubbard turns 16 today, marks second birthday in the hospital following burn injury

Michael Hubbard, the Riverhead teen severely burned when a decorative firepot exploded on May 28, 2011, covering him with flaming gel and causing third-degree burns over 40 percent of his body, celebrates his 16th birthday today.

His family and friends will gather this afternoon in a recreation room at Blythedale Children’s Hospital in Valhalla, where Michael has been undergoing therapy since last September.

“It’s not a happy birthday,” his mother Nancy Reyer said in an interview this week. “But it is another year and Michael has made progress.”

The once-strapping youth is confined to a wheelchair and has severe physical and mental impairments resulting from brain injury suffered as a result of the accident. The severity of the boy’s burns led to major organ failure and on June 9, 2011, Michael suffered cardiac arrest. Doctors at Stony Brook’s pediatric intensive care unit brought him back, but his brain was without oxygen for 13 minutes.

Today, Michael is alert, though he doesn’t speak. It’s not clear how much he understands, his mother said. “But he laughs at everything,” she said.

His burns are healing, though he is severely scarred. The flaming gel covered his lower face, jaw, neck and torso. Fire officials have likened the alcohol-based gel to napalm, the incendiary weapon used in war. It is extremely difficult to extinguish as it burns into the layers of skin.

Michael is not in pain any more and is off all pain medications, his mother said. He wears hand splints to help keep open his hands, which have curled up into a closed position. He has physical therapy daily. Therapists are using a standing table to put him into a vertical position. When he’s standing using the table, his mother sees how tall he has grown over the past 15 months. Therapists also have him moving from one side to the other in his bed.

“Well he didn’t run a mile-long dash,” Reyer said, “but he has made progress this year.” He has made unusual progress for someone with the severity of brain injury he has, she said. “He’s definitely not the norm for the extent of his brain damage. Usually at six months, what you see is what you get, but he’s continued to make progress after six months.”

Reyer has been living in her only child’s hospital room since the accident, first at Stony Brook and, for nearly a year now, at Blythedale. She rarely leaves his side, though she has been coming home to Riverhead a bit more frequently in recent months, something her family and friends urge for her own mental and physical health.

“She needs the break,” said her sister, Fran Johnson.

Johnson’s backyard was the scene of the accident last year, the day after her wedding to her husband Curtis. Michael’s last pre-injury photos were taken at her wedding reception May 27. He is dressed in a tuxedo and smiling broadly, posing with family members. The following day the family was setting up for a backyard party at Johnson’s house on Rabbit Run. Michael and Johnson’s son Kris — virtually inseparable cousins and best friends — were helping out. Kris poured citronella gel fuel into one of the firepots and the thing exploded, according to witnesses, slathering Michael, who was several feet away, with flaming gel.

There have been more than 120 known incidents involving the firepots in the U.S. since they were first offered for retail sale in late 2009. The first burn injury was reported in April 2010. Two deaths and more than 100 burn injuries — many of them severe — would follow. Most recently three people at a backyard party in California on July 4 were burned in a firepot mishap. The most severely injured, a 46-year-old woman, remains hospitalized for third-degree burns over 50 percent of her body. She has had 12 surgeries and continues to struggle for life, according to the Delmar, Calif. fire marshal who was at the scene.

Most of the people burned by the firepots were injured in the same manner. Someone poured gel fuel into a firepot that was already burning or still hot. The new fuel causes a flare, flash or explosion that shoots ignited fuel a distance of several.

The U.S. Consumer Product Safety Commission created a video to demonstrate how the accidents occur. According to USA Today, the CPSC did not release the video after industry pressure against its release. USA Today obtained the video through a freedom of information act request and published it on its website.

The clean-burning ethanol fuel burns with a flame that is nearly invisible. It is added to a recessed stainless steel cannister inside a ceramic jar. The recessed cup combined with the clean-burning fuel lead people to believe the firepot is no longer burning. It is a deadly combination. When they pour more fuel into the cannister, the heat or flame is drawn up into the plastic fuel bottle, igniting its contents and turning the bottle into a kind of flamethrower, according to the CPSC video.

Responding to media attention following Michael’s injury, and a similar injury a week later to a 24-year-old NYC man, the CPSC opened an investigation into the product, which the agency said in June 2011 had caused eight known similar injuries. At first, the federal consumer protection agency declined to issue a recall of the products, urging consumers to exercise caution in their use. A week later, after an outcry from state and federal elected officials, the agency issued a nationwide recall of the pourable fuel that injured Michael, requiring 460,000 containers to be pulled from retailers’ shelves.

As the investigation expanded and more cases of injuries were uncovered, the company that distributed the pourable fuel and firepots, Napa Home & Garden Inc. of Duluth Ga., facing what would certainly be hundreds of millions of dollars in personal injury claims, filed for Chapter 11 bankruptcy protection July 5, 2011. In a court-ordered sale of assets, the company sold all of its assets — excluding the controversial firepots and gel fuel — to a private equity firm for $1.1 million. The private equity firm operates Teters Floral Products. Napa stayed in business as a division of Teters, with Napa’s owners, Jerry and K.C. Cunningham at the helm.

The bankruptcy court, meanwhile, is supervising a fund of approximately $15 million, consisting of the company’s asset sale proceeds and several liability insurance policies, which will be used to attempt to settle more than 75 personal injury and property damage claims, notices of which have been filed with the bankruptcy court. They total “many millions of dollars,” according to court papers.

Payments to individual claimants will not be sufficient to compensated Michael Hubbard for the damages he’s suffered, his lawyer, personal injury attorney Steve Barnes said.

Barnes filed suit in State Supreme Court three months ago against retailer Bed, Bath and Beyond, which sold the firepot and gel fuel that injured Michael. Under New York law, retailers are responsible for injuries caused by products they sell. Bed, Bath and Beyond, the only national retailer to sell the Napa products, was, according to Barnes, “more than just a passive retailer.” Barnes said Bed, Bath and Beyond was “aware of the problems with these products” before it sold them to Fran Johnson last year. He said the company knew to be inadequate the small-print warnings that appeared on product labels — which also proclaimed, in larger type, “Firegel” was the “safe, pourable gel fuel.” The retailers had already had discussions with Napa representatives about using a “hang tag” on the product to make warnings more visible, Barnes said.

The lawsuit won’t likely be concluded for another 12-18 months, Barnes said. It seeks unspecified money damages; if successful, the damage amount will be set by a jury, according to the lawyer.

Bed, Bath and Beyond last week served Michael’s aunt with a cross-complaint accusing her of negligence in failing to adequately warn her son and nephew about the hazards of the products and failing to adequately supervise their use.

“I cannot believe they are trying to turn this around and blame it on me,” Johnson said.

The Consumer Product Safety Commission, meanwhile, is still considering adopting new rules to govern the labeling and sale of these products or ban their sale altogether. Barnes said he is “surprised” the federal agency is taking so long to act.

The CPSC published an advanced notice of proposed rulemaking in December, seeking public comments on the idea of setting new standards. The comment period closed Feb. 27, but the agency has not yet taken any action.

A spokesman for the agency told RiverheadLOCAL last week CPSC staff is currently preparing a Notice of Proposed Rulemaking. Once published, it will be followed by another comment period.

Following the Napa voluntary recall last June, nine other manufacturers in September agreed to pull similar products from retail shelves — a total of more than 2 million bottles nationwide.

“CPSC is not aware of gel fuels being produced or sold for use with fire pots in the U.S. at this time,” agency spokesman Carl Purvis said in an email last week. “Tragic incidents like Michael’s are the reason we moved as quickly as we did to get this hazardous product off store shelves.”

Consumers who have already bought the products are urged not to use them and return them to the manufacturers immediately for a refund, he said.

One year ago today, the Suffolk County Legislature approved a bill introduced by North Fork legislator Edward Romaine that banned the sale of ethanol-based pourable gel fuels in Suffolk County. Dubbed “Michael’s Law” it took effect after being signed by then- county executive Steve Levy on Sept. 12.