Killer Show: The Station Nightclub Fire (45 page)

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 covered 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. . . .