On May 3, 2002, plaintiff’s decedent Derek Martin, 38, a firefighter and member of the search and rescue squad for the St. Louis Fire Department, was wearing a self-contained breathing apparatus (SCBA) and personal alert safety system (PASS) while battling a two-story industrial building fire in downtown St. Louis. Martin was one of the 66 firefighters at the five-alarm blaze. The SCBA and PASS-an 2-inch-by-4-inch plastic electric/battery-operated device that rests on the left side of a firefighter’s chest-were both designed and manufactured by Survivair Respirators, Santa Ana, Calif.PASS was designed to sound a loud alarm if a firefighter became immobile for 20 seconds during the course and scope of responding to an emergency call. Martin, who had already been inside the building for several minutes, was outside the building for a manpower assessment review count when it was radioed that firefighter Robert Morrison was down. He was on the burning structure’s second floor. Due to zero visibility in the building, Morrison’s partner lost his way when he went down. While Martin received a 30-minute air tank, two other firefighters went to find Morrison, and then two went along with Martin into the building.
Two minutes after reentering the building, Martin lost his way and radioed Mayday and made seven radio calls for help, after which the transmission went dead. Martin, who was later found near the stairwell to the second floor with his mask and gloves removed, died of smoke inhalation. Morris also perished in the blaze.
Martin’s family sued Survivair and its parent company, Bacou-Dalloz, located outside of Paris on a products liability, claiming design defect. Morrison’s family settled with the defendants in 2006 for a confidential amount.
Plaintiffs’ counsel argued that had Morrison’s PASS unit sounded, Martin, an experienced 11-year firefighter, wouldn’t have gone into the building, since Morrison would have been rescued by other rescue workers already inside the structure. Counsel also contended that Martin’s exhalation valve of his SCBA malfunctioned, preventing him from receiving proper airflow.
Through a court order, plaintiffs’ counsel was able to obtain emails that showed Survivair had known for years from fire departments that the silicone seal of the PASS device allowed water to infiltrate into the electronics compartment, which had a conformal coating, thereby malfunctioning and causing the system to fail to alarm. Counsel was also able bring in about a dozen firefighters from Washington, Alabama, Texas, Georgia and California, who testified that they encountered the same problems with the exhalation valve and PASS alarm, and that Survivair failed to take corrective measures after the departments notified them.
Through testing a PASS exemplar, John Hilleart, the plaintiffs’ metallurgy engineer expert, opined that the PASS device was improperly designed as it allowed water to infiltrate, and that if Morrison’s PASS unit would have sounded, Martin wouldn’t have gone into the building.
Video was shown of David Harrell, electrical engineer expert, testing an exemplar PASS device by placing drops of water on circuits in the electrical circuit board, which caused the apparatus to shut down.
David Schwadd, the plaintiffs’ mechanical engineer, said that from a mechanical standpoint, the apparatus was defective because it wasn’t sealed properly, allowing water to seep into the device.
The subject exhalation valve–a small, round half-inch extended piece of plastic with the hole a little thicker than the tip of a ballpoint pen-was on a spring located on the bottom of the mask which went down to allow exhalation. Plaintiffs’ counsel argued that the fatally designed valve became stuck in the small opening of the valve’s recess, and prevented proper airflow to Martin. Plaintiffs’ counsel argued that to unstick the valve, a small object such as a pen was necessary, which would require Martin to remove his mask and gloves.
By comparing Survivair’s valve to its competitors’ pressurized breathing systems (i.e. an accessible protruding valve on a mask and a secondary exhalation valve adjacent to the primary valve on a mask), Norman Johansen, the plaintiffs’ products engineer expert, said that the defendant’s device was erroneously designed and that a grain of sand could jam the valve. Johansen further opined that Survivair could have resolved the defective valve by installing a piece of plastic, which would only cost a penny, to elongate the valve.
All of the plaintiffs’ experts testified that waterproofing the electrical compartment of the PASS would only cost a few cents.
The defense denied the allegations.
Defense counsel contended that the Survivair PASS device was designed so that if water penetrated the unit, the device would alarm when it was not supposed to alarm, rather than failing to alarm when it should, and that it was only an inconvenience rather than a safety issue.
Upon cross-examination, Hilleart conceded that Morrison’s PASS device was operational before and after the fire. Charles Landy, the defense’s electrical engineering expert, and Clifford Bigelow, the defense’s mechanical engineering expert, both opined that Morrison’s PASS device was fully operational before, during and after the fire. They said that even after the Morrison PASS was dunked in a meter of water for two hours it continued to go into full alarm and stayed in full alarm for an hour and 50 minutes.
Survivair’s president stated that he did not know about the allegations regarding stuck exhalation valves in a dynamic mode (i.e. while fighting a fire) until two weeks before his testimony. Defense counsel contended that the mask’s exhalation valve never stuck while already in use, but only stuck when the apparatus was left dormant and/or sustained buildup from a lack of proper maintenance and cleaning or during initial activation. Bigelow explained to the jury that even if the exhalation valve became stuck, a user could still breathe through the SCBA mask. He opined that even when an exhalation valve that had been purposely glued closed, a user could still inhale and exhale. The defense contended that Martin’s exhalation valve worked both before and after the fire.
The defense relied upon the testimonies of a number of St. Louis firefighters who said that if they found an exhalation valve to be stuck closed, they were able to unstick the valve by blowing hard against the valve. Bigelow also opined that if properly cleaned and maintained, the valve did not stick, and that sticking exhalation valves was an industry-wide problem affecting every manufacturer. Bigelow further opined that the PASS alarm worn by Morrison may have failed to alarm because it sustained extensive heat damage from the fire. Counsel played an audiotape recorded by the St. Louis Fire Department on the night of the accident to the jury in which a PASS device could clearly be heard in the background, which defense identified that of Morrison.
Gary Morris, a fire chief outside of Phoenix, testified that Martin’s death was due to the failure of proper protocol by the responding firefighters and fire department. He said that the St. Louis firefighters failed to ventilate the building by creating an opening in the subject building’s roof; failed to turn off the gas in the building upon arrival. He added that emergency responders did not know where they were supposed to be because of the incident commander’s inadequate command structure, and Martin failed to use the buddy system when he reentered the building. These errors were the sole cause of Martin’s death.
Plaintiffs’ counsel disputed Morris’ testimony, arguing that the buddy system was part of the guidelines, and in the case of life or death, guidelines are not rigid rules to be followed.
Martin’s wife, his mother and his three children, Jordan, Denzel and Kayla, sought damages for his wrongful death. They brought a survival action for the time he suffered before his death.
Raymond Burch, the plaintiffs’ medical examiner, testified that Martin cried for help on several occasions for eight minutes before he died. Plaintiffs’ counsel argued that Martin’s death deeply saddened a close-knit family who attended Sunday school and Bible classes throughout the week, as Martin was a church deacon. His family sought $30 million, the cost of annual sales of the 10,000 SCBA devices shipped at $3,000 per unit, $25 million in compensatory damages and an unspecified amount in punitive damages. Survivair has sold approximately 100,000 SCBA units since 1999.
The jury found that the defendants were 100 percent negligent. It awarded $27 million. From that award, the jury apportioned $15 million, of which $14 million was against Survivair and $1 million was against Bacou-Dallouz for aggravating circumstances (punitive damages) for conscious disregard for safety.