Expert Value

Nearly 17 years ago, on May 20, 1990, the new Prima-Viande slaughterhouse located near Trois-Rivires, Quebec was entirely destroyed by fire. Thus began an epic judicial odyssey ending only recently, on Oct. 31, 2006. The moral of this long, winding litigation is two-fold for companies assessing product liability risk. First, companies should test their products in a real-life environment whenever possible. Second, assuming favourable factual circumstances, a party to a product liability case should not hesitate to locate expert resources and spend the money required to make its case vigorously and successfully.

BACKGROUND: THE FIRE

An initial investigation revealed the Prima-Viande fire had been of great intensity, produced intense black smoke and was very difficult to extinguish. Since the Prima-Viande building was essentially constructed using concrete and steel (both incombustible materials), the investigation attempted to determine what caused this unexpected situation.

Attention quickly turned to a product called Arcoplast, a construction material used for the walls and ceiling of the plant. This new product – basically a gel coat, fibreglass and urethane sandwich construction – had been touted by its distributor SIA and its manufacturer Manac as ideal for sanitary applications such as hospitals, bakeries and restaurants because of its smooth glossy surface and its 50-foot panel length, thus reducing the need for joints. The material was described in a brochure as being composed of incombustible materials; therefore it would not propagate a fire.

On the basis of a sales pitch in March 1988, when an SIA representative attempted without success to light a sample of Arcoplast with his lighter, the owner of the Prima-Viande plant immediately ordered a large quantity of Arcoplast as a substitute for the Bally panels (stainless steel skin) originally planned for Prima-Viande.

The initial investigation of the fire produced puzzling results: Arcoplast remnants from the construction site proved difficult to light and self-extinguished after a few moments. Nevertheless, the Arcoplast panels in the plant had burned completely.

EXPERT TESTIMONY

The key to this puzzle came from Dr. Brady Williamson, a distinguished professor at the University of Berkeley, California. Williamson had done extensive consulting work for the United States government during the 1960s, when urethane products became readily available and a number of large fires ensued.

Williamson has since become a leading authority on the behaviour of this type of material. He has been instrumental in legislation concerning the mandatory protection of urethane (or similar) foams in construction projects.

Williamson indicated two processes could explain the fire at Prima-Viande: (1) the fibreglass and gel coat protection layer could have become detached, exposing the urethane underneath and/or (2) the protection layer itself could have participated in the fire.

Expanding on his analysis, Williamson observed that chemical analysis revealed the fibreglass layer of Arcoplast contained a fire-retardant, namely ATH, which combats fire by emitting water molecules. But once this retardant is depleted, the fibreglass coat can ignite. In his opinion, this explained why Arcoplast, when subjected to a minor heat source or flame (such as a lighter) would self-extinguish, but why it fully ignited and propagated the fire at Prima-Viande.

At least that was the theory. As for the practice, Williamson recommended using Exponent, a well-known firm of experts in California, to conduct tests of the proper material.

REAL-LIFE SIMULATION

In order to properly simulate the real-life situation at Prima-Viande, a corner test was conducted. In this test, three large panels of a material are assembled to form two walls and a ceiling. A calibrated heat source, in the form of a wood crib, is then applied to the simulated “corner.”

A problem occurred when it was discovered that not enough Arcoplast remained from the construction site to conduct the test. Exponent was therefore mandated to have new panels reconstructed, at a substantial cost, according to the original recipe used by Manac.

A corner test was finally conducted at the combustion laboratory at Berkeley. The Arcoplast performed exactly as expected: for about six minutes, the fire source appeared to have no effect. But then the fibreglass coat ignited in such a violent manner that the test had to be aborted after about nine minutes. A similar test was also performed on Bally panels. In the Bally panel test, the wood crib fire died out on its own after 25 minutes, without the panels being significantly affected.

The two tests were recorded and a DVD was created showing both tests side by side with a running clock. The contrast between the two was rather striking. This DVD became a major element in the case against SIA and Manac.

TRIAL FINDINGS

While this lengthy and expensive fabrication and testing process was going on, examinations for discovery of the defendants revealed that the development of Arcoplast had been done in an improvised and hurried fashion. Despite the glowing contents of the product brochures, the Prima-Viande plant was the largest project involving the product so far; SIA was very intent on executing this contract for subsequent publicity purposes.

In fact, a serious problem surfaced during the initial construction phase: the project architect required proof that Arcoplast met a key requirement of the National Building Code (‘NBC’), Can4 S102, a flame spread test. Incredibly, neither the distributor nor the manufacturer knew of this basic requirement of the NBC – let alone whether Arcoplast met this standard. A rushed development process ensued.

The sale of Arcoplast panels to Prima-Viande had been concluded in March 1989. But a new formulation for Arcoplast, which supposedly met the NBC requirement, was finalized only in June 1989. Moreover, Manac conducted no testing on Arcoplast until October 1988; even then, it performed only small-scale tests, such as a tunnel flame spread test, which, as it turned out, were in no way similar in scope to the corner test conducted by Exponent. These small-scale tests did not represent the real-life behaviour of the product. In its defence, Manac pleaded the corner test was not required under the NBC – a fact that was true, but dismissed by the trial judge.

In effect, it became clear during the steps leading up to trial that the Arcoplast manufacturer and distributor had no idea that the product could be dangerous. In his September 2003 judgment, the trial judge agreed with the findings of Williamson and Exponent, concluding that Arcoplast was developed in a hurried and improper fashion and was not adequately tested. His ruling moreover, based on the DVD, was that Arcoplast was a dangerous product. He also discussed the issue of installation.

The trial judge also found that the installation of Arcoplast panels in the Prima-Viande plant, which also came under scrutiny during trial, was done in an improvised fashion. The head installer for SIA testified that several methods were used to attach the ceiling panels to the steel structure of the building. The method suggested by Manac, namely fasteners going through the panel, was not followed. Instead, SIA decided to glue fasteners to the top surface of the panels. This method proved to be unsatisfactory, however, and the trial judge agreed with the expert who suggested this could have led to the fasteners failing prematurely and/or the delamination of the ceiling panels, causing direct exposure to the flames of the urethane inside.

The wall panel joints also constituted a major problem. SIA had tried several experimental installation methods, further to ongoing instructions from Manac. All methods proved unsatisfactory: cracking due to temperature contraction and expansion ensued. In fact, evidence revealed that all of th e joints at the plant, a total of 30,000 linear feet, were supposed to have been redone in July 1990, two months after the fire. The trial judge concluded these joints may have contributed to the spread of the fire by allowing the flames to infiltrate the Arcoplast panels.

FINAL ANALYSIS

In a lengthy decision, the Quebec Court of Appeal in October 2006 upheld the judgment of the Superior Court and ordered SIA and Manac to pay $23 million, including interest. Here it should be noted that the Court of Appeal referred to the side-by-side test in the DVD as a major element in this case.

This major case contains lessons for many players involved in the insurance industry, as well as for risk managers who assess product liability for their companies. Chief among them are two main lessons to be learned:

* a manufacturer should test its products in a real-life environment. Moreover a product should be sold as a complete package, including a proper and safe method of installation; and

* in a product liability claim, a party should not hesitate to look for outside resources and spend a considerable amount of money to prove its case if the circumstances warrant it. The key factor in the Prima-Viande case, for example, proved to be the hiring of Dr. Williamson for his insight and Exponent to conduct the tests and produce the DVD.