By Reni Gertner
Lawyers USA
 
ST. LOUIS, Mo. — A reenactment of firefighter Derek Martin's last moments when his breathing device failed in a burning building - coupled with a tape of Martin's own sounds of struggle - led a St. Louis jury to award his family $27 million in their wrongful death suit against the device manufacturer.

Martin died while attempting to rescue a fellow firefighter who was stuck in a burning building.

The plaintiffs argued that Martin died of smoke inhalation after the exhalation valve on his oxygen tank stuck. They also argued that he wouldn't have had to go back in the building if the stranded firefighter's Personal Alert Safety System (PASS) device had sounded, alerting nearby firefighters to rescue him much earlier.

The plaintiffs sued Survivair Respirators, Inc., which manufactured the device, and its French parent company Bacou Dalloz, SA.

One of the most powerful moments of the trial, according to plaintiffs' attorney Jerry Schlichter of St. Louis, was when he brought in a St. Louis firefighter to reenact what likely happened when Martin's breathing apparatus was failing.

"The firefighter crawled in front the jury, simulating the valve sticking and trying to get the mask loose," said Schlichter. "You have to break the seal around your face when the valve sticks, but then you're losing air very quickly. The jury could hear the air rushing by. "

Schlichter also played a tape of several radio transmissions from during the fire, including Martin's cries for help.

"It was extraordinarily unusual if not unprecedented to have a recording in a wrongful death case of the decedent's struggle for life in the last moments of his life," Schlichter said.

After a 4 1¼2-week trial and 47 witnesses for the plaintiffs' side alone, the jury awarded the family $12 million in compensatory damages and $15 million in punitives. It allocated $14 million of the punitive award to Survivair and $1 million to Bacou Dalloz.

"We alleged there was separate responsibility for the French parent company because it had veto power over a recall [of the device]," said Schlichter.

Defense attorney Lynn Hursh of Kansas City, Mo., said the defendants are still evaluating whether to appeal the verdict.

Failed devices
The fire was in a small two-story industrial building in St. Louis. According to Schlichter, the fire had been put out, but suddenly reignited when a gas line broke.

Smoke was heavy on the second floor and radio communications indicated that a firefighter, Rob Morrison, was down. That's when Martin reentered the building with a full tank of air in an attempt to rescue Morrison.

"Two minutes after Derek goes into the building looking for Rob, he's in trouble," Schlichter said.

This is when firefighters outside the building began receiving a series of seven radio transmissions from Martin, saying "May Day, May Day, Help me," over an 8 1¼2 minute period.

According to Schlichter, all firefighters in the country wear a PASS device integrated into their breathing apparatus.

"If the firefighter is down and immobile for more than 20 seconds, an alert is supposed to sound [from the PASS device]. It's a 95-decibel noise to tip off other firefighters that there is a down immobile firefighter," he said.

If Morrison's PASS alarm had sounded, Martin wouldn't have reentered the building because other firefighters would have found him.

"We alleged that the two different malfunctions occurred independently, but that either would have caused the death standing by itself," said Schlichter.

He played the tape of the radio transmissions at trial not only to display Martin's pain and suffering, but also to prove that there was no PASS device sounding in the background.

At trial, it was important that Martin's widow, Angela, confirmed that it was his voice on the tape.

"If it were Rob's voice saying 'help me, help me,' it could mean Rob was conscious and could be moving around, which would explain why his PASS device didn't go off," Schlichter said.

The reenactment
The plaintiffs also argued that the stranded firefighter died because the exhalation valve stuck on his breathing apparatus.

"It's like having Saran Wrap over your face," Schlichter said.

Schlichter reenacted the scene for the jury by having the St. Louis firefighter crawl on his hands and knees and take off his "bulky gloves" to free his hands in an attempt "to unstick the valve," Schlichter said. "The valve is recessed in the bottom of the mask and you need a small object to unstick it. It's impossible and you would eventually be overcome by smoke inhalation. "

He said the most important proof of the accuracy of the firefighter's reenactment was that "Derek was found in the hot fire with his mask off and gloves off. There would be no reason for him to take his mask off and gloves off unless the exhalation valve was stuck. "

Key documents
The defendants argued that PASS devices couldn't fail. But the plaintiffs contended - with the support of multiple engineers - that the device could both alarm when it wasn't supposed to and fail to sound when it was.

They also used documents from the defendant companies that showed that the device had a history of water "intruding into the electrics compartment" - which Schlichter argued could cause it to malfunction.

He also entered into evidence reports from the company of exhalation valves failing.

"They claimed they never had a report of an exhalation valve sticking at a fire and that the only problems had been at the beginning of the day due to improper cleaning by a firefighter," said Schlichter. "We said if dirt and debris and soot got in it could stick in a fire. "

Schlichter called a fire chief from Washington State who testified that she had PASS devices in her department that failed to alarm. She claimed she wrote to Survivair about the problems four times over five years but the company never responded.

The company also failed to provide two years worth of its field quality reports, alleging they were destroyed when a toilet overflowed.

The defendants brought in an expert fire chief from Arizona, who testified that the sole cause of Martin's death was the fire department's violations of their rules, such as failure to properly ventilate the building, improper radio communications and Martin's failure to be with a "buddy" during the fire

But using testimony from other firefighters, Schlichter argued that the buddy system is only a guideline, and that Martin went back into the building because he "valued human life. "

Copyright 2007 Dolan Media Newswires