The plaintiffs benefited in another wholly unexpected way from our candid exchange of information with Pactiv. Pactiv had done research in 1995 and 1996 to determine different companies’ market shares for laminated PE foam plank. Lovely pie-charts from that research explained that Sealed Air had 51 percent of the market in 1995, Sentinel had 26 percent, and Pactiv, only 8 percent. If one were to eliminate Pactiv as a possible producer of the Julian-installed foam, Sealed Air’s market share went up to 56 percent, and Sentinel’s to 29 percent. The argument could therefore be made that, to a mathematical probability, it was more likely that Sealed Air’s foam had graced the walls of The Station.
Sealed Air took a more traditional route in defending against the plaintiffs’ claims. It filed a motion for summary judgment, attaching company marketing brochures for its laminated PE foam plank from 1993 to 1995. In so doing, it would unwittingly walk into a buzz saw.
The mystery of where Howard Julian obtained his PE foam blocks was eventually solved by further interviews with, and a sworn affidavit from, ex-Station manager Tim Arnold. Arnold finally admitted that, as he watched Julian install the foam in 1996, Julian told him he had found the foam “in a dumpster.” According to the Arnold affidavit, Julian had no packaging material, boxes, or receipts for his claimed purchase of the foam.
Why would Howard Julian have an incentive to lie about the foam’s origin? Well, at the time, Jeffrey and Michael Derderian were facing hundreds of felony criminal charges for, among other offenses, putting flammable foam on the club’s walls — foam that they obtained from a reputable supplier, American Foam Corporation. If the Derderians were in criminal peril for installing sound foam from a legitimate source, how would it look for Julian if it came out that he had endangered club patrons by dumpster-diving for even cheaper “sound insulation”?
The good news after Tim Arnold’s revelation was that we now had strong evidence of where Julian obtained his foam. The bad news was that, in order to advance a product liability theory against the foam’s original manufacturer, we would essentially be urging “dumpster product liability.” Considering that the law of product liability originally required “strict privity” (the relationship between buyer and seller) in order for an injured consumer to bring suit, dumpster liability sounded a stretch, at best.
We would have our work cut out for us. In order to prove a product liability case against a PE foam manufacturer, we’d have to show that (a) its reuse through recycling was foreseeable; (b) PE’S use as a sound insulator was also foreseeable; (c) printed fire hazard warnings on PE plank were feasible and would not have impaired its proper uses; and, (d) the presence of PE foam on the walls of The Station made a material difference to the intensity of the blaze.
Of course, a threshold issue before even these could be reached was, “Who most likely made the Julian foam?” If it were Sealed Air, the claim might have value; if Sentinel, it would have none.
At the time Sealed Air filed its motion for summary judgment, with attached marketing brochures, it could not have known that the chain of custody for Julian’s foam would include recycling via dumpster. So it probably saw no harm in voluntarily producing documents from 1993 to 1995 in which Sealed Air bragged that its foam was “designed for maximum re-use” and could be “reused, returned and recycled.” “Sealed Air Plank can be used over and over again,” trumpeted the brochures.
As to the use of Sealed Air PE foam for sound insulation, the same mid-’90s sales brochures listed “acoustical insulation” and “sound deadening” among its applications. Once again, we had Sealed Air to thank for helping us prove a critical issue in our case.
But what of the feasibility of printing flammability warnings on the board stock before it was shipped to fabricators? Was there any precedent in the plastics industry for printing warnings on a product about misuse after the end product was discarded? Well, one that every juror was familiar with was the warning appearing at intervals on the clear plastic film used for dry cleaner bags: “WARNING! This bag is not a toy. Danger of suffocation. Do not use it to line cribs.”
Thanks to Sealed Air, it looked like recycling and reuse of PE foam were foreseeable, as was its use for sound insulation. And there appeared to be precedent for warning of foreseeable misuses after the product was discarded. All that remained was for us to prove that the PE foam made a difference in the Station fire.
Oh, and one other little matter — proving that Sealed Air actually made the Julian foam.
The Western Fire Center in Kelso, Washington, contains equipment that would be the envy of every thirteen-year-old computer geek / pyromaniac — which is to say, also most adult males. If the whole law thing doesn’t pan out for me, I’d like to work at the Western Fire Center, burning stuff. Once, they were hired to test whether shattering high-intensity mercuryvapor lamps could ignite warehouse fires. For this, they installed huge lamps above pallets of combustibles — and shot out hundreds of the hot bulbs with a BB gun. They also tested an acetylene-powered gopher extermination system that had, unfortunately, launched a farmer who had the poor judgment to stand over the gas-filled main gopher-hole as he fired it up. My kind of science. Hell, I’d pay them to work there.
The necessity of testing polyethylene foam to demonstrate its contribution to the Station fire was reinforced for me one Saturday in 2008. I was cleaning up storm debris from the shoreline in front of my house, tossing branches onto a small bonfire I’d built for the task. One interesting piece of flotsam was a buoyancy panel from a dock or boat. About six inches thick and two feet by two feet, it was a block of white closed-cell foam — probably polyethylene. Unthinking, I threw it on the fire — and immediately regretted it.
The foam block ignited and began to belch dense black smoke in a quantity I could never have imagined. It roared and crackled and burned for what seemed like forever, creating an inky plume that rose into the cloudless sky and began to be carried over the ocean toward Westport, Massachusetts. There was simply no putting it out. The smoke column rose hundreds of feet, leading right back down to the guilty polluter — me. As I awaited the arrival of environmental protection officers, I became absolutely convinced that the PE foam had made a difference in the intensity of the Station fire. And that there had to be some way to quantify it.
In May 2008, I commissioned the Western Fire Center to try to answer the question, “What difference did the presence of Howard Julian’s PE foam, underneath the Derderians’ PU foam, make in the first minutes of the Station fire?” The answers were produced quantitatively, by the computers, and graphically, by videotape.
One of the largest devices at the Western Fire Center, which would prove invaluable in the Station fire case, is something called a “hood calorimeter.” It is, essentially, a huge, asbestos-curtained exhaust hood under which boxcar-size structures can be burned, while powerful computers monitor instrumentation within the exhaust stream for temperature and by-products of combustion. By burning different materials under the hood, fire scientists can quantify each material’s contribution to a fire’s “fuel load” and, hence, its intensity.
The first test was to determine how soon PE foam blocks would become involved in a fire when egg-crate PU foam, glued on top of them, was ignited. I watched, fascinated, as Western Fire Center personnel constructed room corners from gypsum wallboard (a fireproof material) and screwed four-ply laminated PE foam blocks to its walls. They inserted temperature sensors through the back of each wall, to the surface of the PE foam. Then, they glued egg-crate PU foam on top of the PE foam, of the type and density used by the Derderians at The Station. They set fire to the structure using a standardized ignition source at the base of the corner, and the computer plotted how soon the PE foam became involved in the blaze: about twenty seconds.
Then, we undertook to determine the difference that the Julian PE foam made in the first minutes of the fire. To do this, Western Fire Center engineers built one room corner covered only with egg-crate PU foam and another co
vered with the PU/PE foam sandwich, affixed with screws and glue, just like at The Station. They burned each under the hood calorimeter so that the computers could calculate the heat release rate over time, a value that fire scientists use as shorthand for a fire’s intensity.
The results were stunning. As expected, during the initial forty-five seconds of the fire, when the egg-crate PU foam was primarily involved, the heat release rates of the PU and PU/PE sandwich were similar. But after the PE foam layer caught fire, the energy output of the PU/PE sandwich outpaced the PU-only test by a factor of five. At the ninety-second point, the PU/PE sandwich’s heat release rate was almost seven times that of the PU foam. Also, the carbon monoxide released by burning the PU/PE sandwich dramatically increased at ninety seconds, and continued to rise for another minute and a half, while that released in the PU-only burn test steadily diminished from seventy-five seconds onward.
Videotape from the testing was even more impressive. On the video, the PU-only test starts fast, but begins to diminish in intensity after only one minute. At ninety seconds, it is almost out. By contrast, the PU/PE sandwich test is still roaring with freight-train intensity after ninety seconds. Its furious burning only begins to abate after three minutes.
One final test remained to be performed. The technicians built an actual eight-foot by ten-foot room, lining its ceiling and two walls with the PU/PE sandwich, as at The Station, and placing the standard ignition source in its corner. Thermocouples measured temperatures at multiple points in the room.
The video of the room test is nothing short of spectacular. Within twenty-two seconds, flames and smoke can be seen roaring from the door opening. At thirty seconds, fire belches ten feet above the door’s lintel, threatening to overwhelm the hood calorimeter. Western Fire Center personnel can be seen knocking down the blaze with a fire hose after only two minutes. The point had been made.
Howard Stacy, vice president of testing at the Western Fire Center, observed the room test, remarking that in thirty years of fire testing, he had never seen a room flash over faster or become more flame-intense. General Manager Mike White, who manned the computers for the tests, put it simply: of any materials anyone had ever actually lined a room with, the PU/PE sandwich had produced the most dramatic room corner test they’d ever experienced.
The question posed by Brady Williamson five years earlier had finally been answered. Williamson himself, however, would never learn the test results. He died of melanoma nine months before they were available.
But what about product identification? The best evidence we had that the Julian foam was probably made by Sealed Air (the only deep-pocket PE foam defendant left) was the market study conducted by Pactiv in 1995 showing Sealed Air with a 56 percent market share. But would a 56 percent share be legally sufficient for a jury to conclude that Sealed Air probably made the Julian foam? More immediately, though, would it be enough to induce Sealed Air to consider settlement?
Sealed Air was the last defendant to agree to private mediation in an attempt to “see what the plaintiffs had,” to present their own defense, and to try to hammer out a settlement. The mediation was scheduled for May 30, 2008, in Boston, and would take place with an unusual ground rule: neither side could chemically test the other’s foam before the mediation.
You’d think that if Sealed Air’s foam could be ruled in or out chemically before the mediation, both sides would want to know. However, such testing would effectively be a “doomsday button,” yielding a binary result that would be either very good or very, very bad for one side or the other. Sometimes the goals of mediation and settlement are better served when both sides perceive roughly equal peril. Counsel for the plaintiffs and Sealed Air agreed, therefore, to try to settle before chemically testing each other’s foam.
However, as the mediation date approached, I wondered, Might there be a way to establish with certainty that Sentinel Products Corporation (the other remaining likely producer of the foam) could not have made the Julian foam? If so, Sealed Air’s 1995 market share for laminated PE foam would go from 56 percent to 79 percent, creating a much stronger probability that Sealed Air made the Julian foam.
We came to learn that Sealed Air and Sentinel had previously locked legal horns, resulting in a settlement whereby Sentinel agreed (prior to 1996) to produce only “cross-linked PE foam” (a type of formulation referring to the strength of certain chemical bonds), while Sealed Air continued to produce the non-cross-linked variety. If the PE foam on the walls of the Station were not cross-linked, then Sentinel probably didn’t make it. Sealed Air, with 79 percent market share, would have been the overwhelmingly likely producer of the Julian foam.
Testing a piece of the Mikutowicz foam in our possession could be done in private, and without court permission. It wouldn’t involve testing a known Sealed Air product, so it would not violate the ground rule of the upcoming mediation. And if the test answer came out right, it could be a game changer.
Two days before the scheduled mediation, I engaged a materials specialist, Chris Scott, Ph.D., to test small samples of the Mikutowicz foam to see if it was a cross-linked polymer. In the short time remaining before the Boston mediation, Scott would use a standardized test methodology in a laboratory across town at MIT, immersing a stainless-steel mesh pouch containing a cube of the Mickey foam in a beaker of warm xylene solvent. If no gel or polymer residue remained of the foam after its hot bath, it could not be a cross-linked polymer, and it would be extremely unlikely that Sentinel made it.
Given the shortness of time, I prepared another, optional, slide to add to my PowerPoint presentation at the Sealed Air mediation — a bar graph showing Sealed Air with a 79 percent market share in 1995. Whether it could be used would depend upon the testing being performed at that very moment on the other side of the Charles River.
Shortly before the mediation, counsel for Sealed Air called me with a request: could Sealed Air bring its fire expert, Frederick Mowrer, Ph.D., to the mediation? I hesitated for a moment, then agreed. What could be the harm? Either our proof was credible, or it was not.
The night before the mediation, I trudged across Boston Common, heading back to my hotel after a not-very-relaxed dinner. I had assembled the biggest presentation of my career at the mediation site. All computer visuals were queued up and ready to go. Only one decision remained, and that was whether I’d be able to use the optional, 79 percent market-share, slide. As I reached the sidewalk of Boylston Street, my cell phone rang. It was Chris Scott, calling from the MIT lab.
The mediation presentation began the next morning at 9:30. Sealed Air brought at least six people, including several attorneys, insurance representatives, and their fire expert, Dr. Mowrer. I presented our theory of the case against Sealed Air, and our proof of each element of the claim. The evidence of Howard Julian dumpster-diving for the foam was reviewed, as well as the remarkable confluence of events that established the Mikutowicz foam as a piece of the Julian-installed 1996 foam. The foam’s pedigree was graphically demonstrated: photos of the Julian foam installed in the drummer’s alcove (behind Mickey Mikutowicz, in his Ozzy Osbourne persona); Exhibit 458, with corner-cuts matching the Mickey foam; the Tim Arnold dumpster-diving affidavit. Then came Sealed Air’s own documents, establishing that the company itself foresaw and encouraged both reuse of its PE foam and use of the foam for sound insulation.
On the issue of whether the foam industry had been aware of dangerous misuse of its products before the Station fire, I explained that, less than a month after the blaze, a special meeting of the National Fire Protection Association’s Technical Committee on Assembly Occupancies was convened. At the mention of that NFPA meeting, Dr. Mowrer, Sealed Air’s fire expert, leaned to an attorney for the company and proudly stage-whispered, “I was there.”
My next PowerPoint slide was a direct quote from one of the speakers who had addressed the NFPA meeting. It was extremely revealing of what the foam industry had long known about dangerous misuse of its products:
My comments today are restricted to the issue of the use of foam plastic products in buildings, particularly those used for assembly purposes. . . .
As evidenced by the recent fire at The Station nightclub in Rhode Island, the use of exposed foam plastics continues to be a problem. It is difficult to assess the magnitude of this problem, but based on my experience, I believe it is pervasive. . . .
In my opinion, the unsafe misuse of foam plastic products in buildings continues to be a pervasive problem that is perpetuated by improper testing and misrepresentation of the flammability characteristics of these products.
The following slide was a clear head-shot of the noted fire expert who had spoken those words to the NFPA audience: Frederick W. Mowrer, Ph.D.
I allowed a few seconds for that slide to sink in, then moved on.
Turning to the market-share data from 1995, I explained how Pactiv had been eliminated from the possible producers, and how chemical testing of the Mikutowicz foam the previous night had shown it to be a non-cross-linked polymer — and therefore not a Sentinel product. Up went the slide showing Sealed Air’s resulting market share after Pactiv and Sentinel were eliminated from consideration: 79 percent.
The reaction of one Sealed Air attorney was explosive. “The rules were ‘no chemical testing,’ ” he sputtered. “No,” I responded. “The rule was ‘no testing of each other’s foam’ ” — and we didn’t. Sealed Air was welcome to test its own foam,” I explained, “but we now know that the Station PE foam wasn’t cross-linked.”
Slow burn from across the table.
Then came the data and video from the Western Fire Center testing that showed the fourfold difference in cumulative energy released and threefold difference in carbon monoxide production of the PU/PE sandwich over the PU foam alone.
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