In order to understand how knowledge of foam plastic’s fire danger was suppressed over the years, it is necessary to go back to the worst nightclub fire in U.S. history — the Cocoanut Grove fire in 1942. In the aftermath of that tragedy, which was caused by fire racing across flammable ceiling-hung fabric decorations, A. J. Steiner of Underwriters Laboratories developed a test to determine the “surface burning characteristics” or “flame spread” rating for building materials. His test, which came to be called the “Steiner tunnel test,” involved a twenty-four-foot-long burning chamber in which the tested material was suspended horizontally (as on a ceiling) and ignited at one end by a gas flame. The rate of flame spread along the material’s surface was compared with that of known benchmark materials, and a numerical rating was issued. For example, asbestos/concrete board had a rating of zero; red oak, 100. If something had twice the flame spread rate of red oak, it would get a 200 rating; if one-quarter that of red oak, 25. By the 1960s, most state building codes classified building materials with a flame spread rate of 25 as “noncombustible.”
When A. J. Steiner conceived of his test method, polyurethane foam had not yet been invented. If polyurethane foam is subjected to the Steiner tunnel test, however, a curious thing happens. The foam melts as it burns, dripping off the horizontally oriented test sample to form blazing puddles below and removing the flame front from the test sample, slowing or stopping its horizontal progress. As a result, PU foam’s measured “flame spread rating” under the Steiner test is very low — about a quarter that of red oak. Orient the foam vertically, as on the walls of the Station nightclub, and the result is very different. Fire races upward, consuming the foam in seconds, as flaming liquid cascades downward, burning everything in its path.
Up until 1974, manufacturers of PU foam marketed their product for building applications as “non-burning,” “self-extinguishing,” and “25 flame spread,” based in part upon its performance in the horizontally oriented 1945 Steiner tunnel test. Why the industry finally stopped this deception illustrates how the civil justice system works to inform a regulatory process that is susceptible to inertia and the pressures of special interests. The history leading up to the foam industry’s agreeing with the Federal Trade Commission (FTC) to cease use of the misleading descriptors shows how a vigorous state tort law system helps to shape the behavior of those who would ignore safety for the sake of profits.
The 1960s saw a number of fires in underground mines, warehouses, and other industrial structures in which plastic foam played a role. But it took a tragic home fire to awaken regulatory authorities. When fire raced through the Clark County, Missouri, home of Jerry and Minnie Childress on March 10, 1969, it was exposed polyurethane foam that fed the blaze. The couple’s eight-year-old daughter, Kelly, and four-year-old son, Jerry, were killed in the inferno.
The Childresses filed a product liability lawsuit against the manufacturer of the foam, who, based upon the Steiner tunnel test and a smaller, analogous bench test, had labeled the product “non-burning” and “self-extinguishing.” A jury awarded the parents $50,000 for the death of each child and $30,000 for the destruction of their property. The foam manufacturer appealed, huffing that the jury’s verdict was obviously the result of “unreasoned passion.” The appeals court, however, saw it somewhat differently: “The evidence conclusively established the unconscionable irresponsibility of defendant in marketing for home use an explosively flammable product as ‘non-burning’ and ‘self-extinguishing’ on the basis of a test, not explained to the buyers, that was so patently inept and inadequate that any layman would be bound to regard it as better calculated to conceal than reveal the deadly properties of the substance.”
The opinion of the circuit judge in the Childress appeal came to the attention of the Federal Trade Commission, the federal government agency charged with investigating deceptive and misleading trade practices. Particularly interested in the use of the terms “non-burning” and “self-extinguishing,” the FTC undertook an investigation of the foam plastics industry nationwide. The findings from that investigation illustrate why some industries are constitutionally incapable of self-regulation.
The FTC found that since the 1950s, the Society of the Plastics Industry Inc. (SPI), a plastics industry trade group, had worked with its constituent members to develop test methods for determining the flammability of its products. In 1959, it promulgated a flammability test standard called ASTM D-1692, a small-scale laboratory screening procedure that allowed foam plastics to be classified as “non-burning” or “self-extinguishing.” As in the Steiner tunnel test, ASTM D-1692 utilized a horizontally oriented specimen. From the mid-1960s through 1974, foam manufacturers encouraged and fostered increasing use of their products by relying on the Steiner tunnel test and ASTMD-1692 to call their products “noncombustible,” “non-burning,” “self-extinguishing,” and “25 flame spread.”
The FTC’s investigation found that the Steiner tunnel test and the ASTM D-1692 test were neither reliable nor accurate tests of plastic products “under actual fire conditions.” It determined that, contrary to the marketing language used by foam manufacturers, the products actually had more rapid flame spread, faster heat production, and greater smoke and toxic/flammable gas emission than conventional building materials; also, that some foams “tend to melt or drip in the presence of fire, which can contribute materially to the spread of a blaze.” The FTC’s complaint alleged that these facts were known, or should have been known, to the foam plastics industry. It concluded that the industry’s use of the terms “non-burning,” “self-extinguishing,” and “25 flame spread” were “unfair, false, misleading and deceptive” and that the industry had engaged in “unconscionable acts . . . contrary to public policy.”
This is not to say that people seriously interested in testing foam products for fire safety cannot successfully do so. The United States Navy uses plastic foams to sound-insulate its submarines. (Drop a wrench aboard a sub and it can be heard for miles underwater.) Accordingly, the navy funds rigorous tests of foam’s fire performance under actual fire conditions because, as noted by one fire expert, Joseph Zicherman, “there’s probably nowhere in the world you want a fire less than a submarine.”
As a result of the FTC’s investigation, the plastics industry agreed in 1974 to cease using the deceptive terminology and to warn purchasers and users of foam plastics concerning possible fire hazards. In a consent order negotiated by the industry with the FTC, the foam manufacturers agreed to warn previous and potential purchasers that the earlier deceptive “numerical flame-spread rating” was “not intended to reflect hazards presented by this or any other material under actual fire conditions” (the only conditions that matter), and that under those conditions, foam may “produce rapid flame spread, quick flashover, toxic or flammable gases, dense smoke and intense and immediate heat.”
Right after the consent agreement was entered, the FTC published a proposed trade regulation prescribing new affirmative warnings for foam building products (which, in the case of foam sold to “nonprofessional users” like the Derderians, would have to appear on the products themselves). However, the FTC soon abandoned that proposal, noting that the threat of tort liability had “already changed behaviors in the plastics industry,” according to the agency’s then-lead investigating attorney, Eric Rubin. Therefore, as to specific new warnings on foam products sold in the future, the industry would be left to the oversight of the nascent and underfunded Consumer Products Safety Commission or, more likely, to its own devices.
Whatever those devices may have been, by the year 2000, when the Derderians bought their corrugated PU foam from the American Foam Corporation, word of its fire dangers had apparently not penetrated the consciousness of the local fabricator (American Foam Corporation — which called it “sound foam” on its invoice) or the end users (the Derderians). While the manufacturer of the bulk foam that was sold to American Foam for cutting into corrugated sheets may have warned that f
abricator that the foam was flammable, it apparently made no effort to warn potential end users of fabricated products (in the case of The Station, corrugated sheets) that non-fire-retardant PU foam was not a building material and should not be used anywhere it might be exposed to sparks or flame. And while PU foams containing a fire-retardant additive were available at a higher price, American Foam sold, and the Derderians bought, the cheapest, highly flammable stuff.
Less than a year after gluing the bargain PU foam to The Station’s walls, Jeff Derderian filmed his television report for WHDH in Boston about the fire hazards of polyurethane foam-filled mattresses. Even as he referred to the mattress filling as “solid gasoline,” Derderian apparently failed to connect the dots.
The question of whether fire-retardant PU foam would have made a difference to victims of the Station fire was put to the test by the National Institute of Standards and Testing after the tragedy. That federal agency fired sparks diagonally from 15 × 15 pyrotechnic gerbs at sheets of fire-retardant and nonfire-retardant corrugated PU foam. As expected, the fire-retardant foam was unharmed. The non-fire-retardant foam — the kind that the Derderians put up on the club’s walls — burst into flames just as seen in the Butler video. The two foams are visually indistinguishable. Without clear warnings, the general public, including the Derderians, could never tell the two apart.
Foam’s propensity to burn furiously is also the feature that makes it difficult to prove a given manufacturer’s responsibility for a fire. The substance burns so intensely and completely that there is often none of it left at the fire scene upon which to base product identification. In short, you can’t sue a foam manufacturer, no matter how inadequate its product warnings, if you can’t prove it manufactured the particular foam involved in the fire. Unless some foam is available for analysis, the fairly generic product may be indistinguishable from foam of anyone else’s manufacture. Victims of the Station fire would have to meet this legal burden, among many others, if they were to hold any foam manufacturer responsible.
The ashes of The Station were not yet cool when fire investigators began searching for any remnants of the sound foam that had been used by the Derderians to line the club’s walls. All but the smallest scraps had been completely consumed in the blaze. Luckily for investigators, however, the brothers were not the most fastidious of housekeepers. In the building’s basement, under tons of rubble, lay several waterlogged rolls of unused gray corrugated polyurethane foam sheets — the balance of American Foam’s shipment from three years earlier.
CHAPTER 20
THE MISSING
Be absolutely certain of the identity of the deceased. . . .
All notifications should be made in person. . . .
More than one person should be present to make the notification.
DO NOT NOTIFY CHILDREN, LEAVE NOTES, OR TELL NEIGHBORS. . . .
Do not use ambiguous terms such as “we have lost John Smith” or “he has expired.” . . .
Use terms such as “killed,” “died,” and “dead,” as these leave no questions.
— from the “Protocol for Death Notification” furnished to Station Fire Family Assistance Center personnel
SIGHTS AND SOUNDS OF THE STATION FIRE were broadcast locally, nationwide, and worldwide within forty-five minutes of its outbreak, thanks to a film-sharing arrangement between WPRI-TV Channel 12 and other networks. This caused family and friends of Station patrons to flock to the site when calls to their loved ones’ cell phones went unanswered. The first arrivals stood by at the Cowesett Inn while the injured were triaged. Other families quickly filled the waiting rooms of area hospitals, praying that their sons, daughters, husbands, or wives had been transported, alive. Many returned to the remains of The Station the next morning, hoping they would not find a familiar car still parked in the club’s lot.
At daybreak, 211 Cowesett Avenue looked like a battlefield. Blood-stained snowbanks ringed the club’s still-smoldering remains. Burned clothing and first-aid detritus littered the parking lot. Firefighters went about their grim business of extracting bodies from the rubble, proceeding at a somber, measured pace. Television uplink trucks soon surrounded the site; before long, reporters outnumbered firemen. The media circus had come to town, and would not strike its tent for weeks to come.
In any disaster, the first step in identifying the dead and injured is learning just who is missing. Then, bodies or hospital patients can potentially be matched to absentees. To this end, police recorded the make, model, and registration of every car in The Station’s parking lot, to be run against DMV records so that registered owners could be ascertained. That would provide at least a starting point for identifying the missing.
The parking lot registration list was as close to a roster of attendees as the Station fire would yield. But it was woefully incomplete. Additional names would have to come from families, or from persons who had escaped the blaze. Families needed no roster, however, to appreciate the binary possibilities for their missing loved ones presented by a car still in the lot that morning: its driver had to be either dead or burned beyond easy identification.
Identifying victims of a tragedy is much more difficult when biological remains are completely lost, as occurred with hundreds of 9/11 victims. Fortunately, something remained of every Station victim’s body. (You know the little name/address slips that passengers are asked to complete immediately before boarding transoceanic flights? Ever wonder why you don’t fill one out when flying over land? The answer has to do with proving who was actually on a plane when remains are lost forever.)
Donna Miele, Michael Hoogasian’s sister, stood in the Cowesett Inn parking lot, trembling in the morning chill. She could not find her brother or his wife, Sandy. Sandy’s car was still parked across the street at The Station — a bad sign. Still, Donna would not give up hope. “Maybe he’s unconscious somewhere,” she told a reporter.
But Miele’s hopes were dashed two days later. Her brother’s body was among the first nineteen identified. Sandy’s took another day to identify. Mike and Sandy — who met Jack Russell at the Doors of Perception studio while Mike received a “flames” tattoo — were two of one hundred Great White fans who would never listen to music again. Their families would always remember where they were when they received the awful news.
For most, it was the Crowne Plaza Hotel in nearby Warwick. At 5 o’clock on the morning after the fire, the American Red Cross and the Rhode Island Emergency Management Agency began operating a Family Assistance Center at the Crowne Plaza. The hotel became at once a maelstrom of hope, worry, grieving, and, for some, rejoicing. It was where families went to find their missing.
The scene at the Crowne Plaza was, for the most part, organized and somber. Families gathered around tables in function rooms, each one equipped with a telephone and a box of tissues. Others sat on the floor in hallways, huddled in quiet circles. Still others repaired to bathrooms to smoke or cry. But the real business of learning victims’ fates took place in the hotel’s grand ballroom. There, an assembly line of graduated despair performed its work with relentless efficiency.
At the first table encountered by families, Red Cross volunteers searched thick binders containing the names of known injured who had been admitted to nine area hospitals. Those fortunate families whose trip along the assembly line ended with that table would scurry out, hastening to their loved one’s bedside.
Families without a match at the first table proceeded to a second, where West Warwick and state police officers helped them complete missing-person reports. Family members then met with forensic specialists in side rooms, where they shared details of the missing person’s height, weight, hair color, and any unique identifying features. Tattoos and distinctive clothing or jewelry would prove important to the process. Names of family dentists were obtained so that X-rays could be requested. (Early on, Rhode Island’s governor, Donald Carcieri, made a public request that every dentist in the state please check his or her messages, so that
records requests could be expeditiously filled. Volunteer health department drivers fanned out across the state to pick up dental records and bring them to the morgue.)
Then, most families just waited at the Crowne Plaza. At first, when officials received new information on a victim, they would call out his or her last name in the ballroom, upsetting loved ones and disappointing all others. Eventually, that “deli counter” approach was replaced by one in which a single family representative would be given a sticker to wear on his or her chest with the name of the missing relative. When news, good or bad, arrived, an official would walk through the crowd, scanning tags, until the right family could be discreetly located.
In order to keep reporters from accosting families at the Crowne Plaza, the Rhode Island State Police and West Warwick police closed the main door of the ballroom and allowed access to families only through a side door. Nevertheless, some enterprising out-of-state journalists rented guest rooms at the hotel and attempted to enter the Family Assistance Center under false pretenses. They were detained by police, then evicted from the hotel.
Jason Kinan and his family waited in the Crowne Plaza ballroom for any news of their brother, Joe. Joe was briefly visible on Brian Butler’s videotape wheeling toward the front doors with his friend Karla Bagtaz in tow. The Kinan family had struck out with the list of injured at the first table, filed their missing-person report at the police table, then furnished forensic information to the mortuary team. Jason was designated to wear the red name tag reading “Joseph Kinan.”
Hours later, a Red Cross volunteer spotted Jason’s tag in the crowd. A patient at Massachusetts General Hospital had been identified as Joseph Kinan. Buoyed by the news, the Kinans immediately left for Boston, one of the very few tag-bearing families to leave the hotel with good news. Their relief would soon be greatly tempered, however, when the family arrived at Mass. General and learned Joe’s condition.
Killer Show Page 18