Family of St. Louis firefighter seeks new deal with breathing gear company

By Robert Patrick
The St. Louis Post-Dispatch

ST. LOUIS — The company that makes breathing and safety gear for St. Louis firefighters "swindled" a firefighter's family by lying during the trial over his death and hiding thousands of complaints about its equipment, the family's lawyer now claims.

The family of Rob Morrison in 2006 settled its wrongful death suit against Survivair for between $2 million and $5 million. The two sides struck a deal as the jury was deliberating about whether malfunctions with Survivair gear led to Morrison's death.

But the Morrisons' lawyer, Dan Finney, is now trying to get the deal tossed out and the case reopened. The company, he claims, did not disclose notice of failures that were identical to what happened to Morrison.

"We tried this case with them withholding serious, admissible, relevant and very damaging information," Finney said, according to a transcript of a hearing in May. "And they knew they had withheld it."

Finney says the information was uncovered in a similar suit over the death of a second firefighter, Derek Martin. In that case, after a trial in 2007, a jury awarded Martin's family $27 million.

Survivair's lawyer, Lynn Hursh, did not respond to requests for comment.

In court documents, the company, which changed its name to Sperian Fire in 2007, says Finney is acting on "unfounded allegations" and "baseless claims." The company says the lawyer already had the records or could have uncovered them before the trial.

St. Louis Circuit Judge Donald McCullin is considering Finney's request for access to more records. In May, McCullin told both sides that Finney had passed the first hurdle — there was enough weight to his allegations that they would not be summarily tossed out.

The accusations come as the St. Louis Fire Department is planning to replace an older generation of breathing and safety gear.

Martin and Morrison were killed May 3, 2002, in a blaze at Gravois Refrigeration, 2241 Gravois Avenue. Investigators blamed a series of accidents and mistakes. Firefighters were in the building without partners, for example, and smoke wasn't properly ventilated.

The line-of-duty deaths, the department's first in 25 years, put attention on Survivair across the country, as thousands of its units remain in use.

At issue in the Morrison suit was his Personal Alert Safety System (PASS) device, which should emit a piercing distress alarm if a firefighter becomes immobile or triggers it manually.

When Morrison became incapacitated, Finney said, the PASS didn't sound and searchers couldn't find him through dense smoke.

In the Martin case, jurors found that while his PASS worked, the breathing equipment failed as he searched for Morrison.

In both cases, Survivair blamed department procedures and denied problems with its equipment.

At the Martin trial, former Survivair president Jack Bell, now a top executive with the parent company, said he had no records of complaints from firefighters.

"I've never heard of a PASS failing to alarm when it should," Bell testified.

But firefighters from California, Alabama, Washington and Georgia testified that they had complained about PASS and air mask problems.

"Our approach to the trial was this was a big, huge coverup," said Brad Wilmoth, one of the Martin family lawyers.

Wilmoth said the legal team uncovered thousands of complaints that Survivair hadn't disclosed.

"That was the best thing they could have done from our end," Wilmoth said, adding that the move made the company look "terrible" in front of the jury.

Jurors awarded the Martin family $12 million in actual damages and $15 million in punitive damages. They said Survivair acted "beyond negligence" in selling equipment it should have known was dangerous.

It was testimony in the Martin trial by Jim Beckstead, a regional manager for Sperian, that really caught Finney's attention. Beckstead told jurors that about 3,900 PASS devices had been returned out of about 67,000 sold.

Finney said Survivair only turned over 220 complaints after he requested them and that none mentioned PASS devices that had failed.

So he has asked Judge McCullin to nullify the settlement and reopen the case. Finney, who tried the Morrison trial alone, is now being helped by three other lawyers.

In a hearing in May, Finney said a Sperian distributor in Florida told him of about 1,000 complaints, including eight PASS devices that failed to sound.

No one mentioned that Survivair had warranty forms for repairs it had conducted, Finney claims, and Survivair never turned over such records when he asked for all relevant documents.

Hursh, representing Survivair, insisted in the May hearing that the company never lied and provided Finney with records he sought. Hursh insisted that it wouldn't have mattered because the PASS failures did not match Finney's theory about how Morrison's failed.

St. Louis University law professor John Ammann, who also directs the school's legal clinic, said there is a "high hurdle" to overcome in reopening a settlement.

Informed of Finney's request to Survivair for complaints about its product, Ammann said a reasonable person could assume that the response would be complete.

"The disturbing thing is if they discovered several hundred" complaints, Ammann said, "you'd have to wonder why they weren't turned over."

The Survivair breathing equipment and PASS devices have remained in daily use in the department, which is now seeking replacements. Sperian is one of four bidders.

Fire Chief Dennis Jenkerson said that like other companies, Sperian has upgraded to meet new, tougher standards set in 2007 by the National Fire Protection Association. Jenkerson also said the city paid to upgrade all its Survivair masks.

Asked whether the allegations against the company would affect the bid process, Jenkerson hesitated.

"I guess that it stays in the back of your mind," he said. "But I've used a Survivair mask quite a bit ... and I can honestly tell you I didn't have any problem with them."

Copyright 2008, The St.Louis Post-Dispatch

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