Gordon V. BRK Brands – $50 Million Jury Verdict

This case arose out of a house fire where Mary Gordon’s two small children died. At the time of the fire Mrs. Gordon was at work and the apartment where the fire occurred was occupied by Mrs. Gordon’s three minor children and Mr. Gordon.

Mr. Gordon prepared the two oldest children for school and left them in the apartment’s living room while he attended to the third child, who was a baby, in the master bedroom. With the bedroom door closed, Mr. Gordon changed the baby’s diaper and dressed him. Suddenly he heard screams from the living room. Mr. Gordon opened the bedroom door and stepped into the hallway. Smoke hovered from the ceiling down to chest level. Mr. Gordon could not see the children through the smoke until he bent down below the smoke. Mr. Gordon saw a small fire in the living room and called to the two children who responded by running to him. Mr. Gordon gathered the children and went back into the bedroom where the baby was and closed the door.

The bedroom of this apartment had an exit door to a fire escape. When Mr. Gordon attempted to open the door it was locked and needed a key to open it from the inside. Mr. Gordon instructed the children to wait on the bed while he left the bedroom to find the key. Once outside the bedroom Mr. Gordon found that the fire had intensified and the smoke was so thick he could not breathe. Still, Mr. Gordon searched for the key by feeling the kitchen counter, where the key was customarily located, with his hands, with his eyes closed and while holding his breath. The key was not located.

Mr. Gordon returned to the bedroom and closed the door. The children sat perfectly still and quiet on the bed. Smoke was now coming into the bedroom from cracks at the top and bottom of the doorway. Mr. Gordon tried to stop the smoke by shoving a sheet into the cracks but the smoke kept coming. The smoke looked like ghosts coming into the bedroom. Mr. Gordon tried to force open the exit door but it would not budge. Smoke now filled the room and it was difficult for the children to breathe. Mr. Gordon pounded on the glass window, broke one pane and cut his hands only to find another storm window which he could not break. Mr. Gordon gathered the children on the bed and laid down between them and the fire like a human fire wall. Soon everyone was unconscious from smoke inhalation.

The St. Louis Fire Department responded to the fire and forced open the front door. The living room area was fully involved with fire. Another firefighter climbed the fire escape and saw Mr. Gordon and the three children inside the bedroom. The firefighter called for help and then broke down the door leading to the bedroom. Several firefighters assisted in removing Mr.Gordon and the children from the burning apartment. Once outside, none of the victims were breathing and emergency resuscitation efforts began. The victims were each taken by ambulance to area hospitals. Mary Gordon, who worked the night shift, was on her way home from work when the fire occurred. As she turned her car onto her street she saw smoke in the air and then was passed by several ambulances speeding away from her apartment. Mary feared the worst.

Mary Gordon’s two oldest children died in the fire. Miraculously, Mr. Gordon and the baby survived. After the funerals and while her husband and baby lay in the hospital one of Mrs. Gordon’s friends suggested she contact, prominent St. Louis burn injury lawyer, Anthony Bruning. Mrs. Gordon called Mr. Bruning who responded to the hospital. Mr. Burning interviewed Mrs. Gordon, spoke to the doctors treating Mr. Gordon and the baby and then interviewed Mr. Gordon who was medicated and slipping in and out of consciousness. During this interview, Mr. Bruning discovered that the apartment smoke alarm, located on the hallway ceiling, never sounded an alarm during the fire.

Mr. Bruning immediately obtained a court order shutting down the fire scene so the evidence would be preserved. Next, fire investigators were brought in from out-of-town to photograph and document the scene and also to remove items of evidence. The apartment’s smoke alarm was found on the hallway floor. On the ceiling above the floor where the alarm was found was a bracket which held the smoke alarm before it melted and fell to the floor. The smoke alarm was taken into evidence for future testing. The smoke alarm’s battery was present and working.

Further investigation revealed that the fire originated in the apartment living room and began as a smoky smoldering fire until it transitioned into a fast flaming fire. Smoke filled the room and covered the ceiling mounted smoke alarm several minutes before Mr. Gordon became aware of the fire. The smoke alarm should have sounded and Mr. Gordon should have had sufficient time and opportunity to locate the apartment keys. Why didn’t the smoke alarm sound?

Mr. Bruning researched smoke alarms and discovered that two types of smoke alarms are manufactured and sold in the United States. One is a photoelectric alarm which used light scattered by smoke to sense smoke. The other is an ionization alarm which uses a small amount of radiation to create an electrical field. In theory, if smoke particles interrupt the electrical field the alarm will sense smoke and go into alarm. However, further research revealed that hundreds of fire tests performed over the past three or four decades have demonstrated that ionization alarms are very poor at detecting large smoke particles – the kind produced by smoky smoldering fires. In fact, since most deadly residential fires begin as smoky smoldering fires, many scientists, firefighters and fire investigators believe ionization alarms are dangerous and should not be used in residences unless they are supplemented with a photoelectric alarm.

Mr. Bruning’s forensic fire investigators identified the remains of the Gordon apartment smoke detector as a First Alert which is made and sold by BRK Brands. Mr. Bruning sued BRK Brands for selling a defective smoke alarm because it will not provide a timely warning in common household fires. He also sued the landlord because of the unsafe exit doors which required a key to open from the interior of the apartment.

As the case progressed, Mr. Bruning learned of several hundred written consumer complaints received by BRK from purchasers who all claimed their First Alert smoke alarm failed to sound an alarm in a real world fire. Mr. Bruning also found a recorded television interview with a BRK Brands executive who stated that ionization smoke alarms will sound an alarm in certain household fires 15 minutes after a photoelectric detector will sound.

For over two years Mr. Bruning took dozens of depositions including depositions from a “dream team” of paid BRK Brands experts from across the country. Alternatively these defense expert witnesses claimed smoke did not reach the smoke alarm so it never sounded; the alarm did sound but Mr. Gordon didn’t hear it or he is being untruthful about not hearing it; that the alarm did not cause the fire so the alarm company was not responsible for the childrens’ deaths; and that Mr. Gordon was negligent because he was unable to rescue the children. Mr. Bruning’s forensic expert prepared a mathematical computer-run fire model of the fire. The fire model produced a timeline and demonstrated that the alarm was covered with smoke and, therefore, should have sounded several minutes before Mr. Gordon became aware of the fire. Had the alarm sounded when it was covered with smoke everyone could have escaped.

The case was set for a jury trial in the St. Louis City Circuit Court. However, in the weeks before trial Mr. Bruning received anonymous letters from a person who said BRK Brands was doctoring smoke alarms sent to Underwriters Laboratories (UL) so that they could obtain the UL mark on their products. The writer claimed he was told by BRK management to alter smoke alarms sent to UL for testing. Had he not altered the alarms they would not have passed the UL tests. Without a UL listing smoke alarms do not meet building codes.

Mr. Bruning hired a well-known and respected private investigator and gave him the anonymous letters. He then prepared for a long jury trial.On Saturday before the trial, which was scheduled to begin Monday, the private investigator called and told Mr. Bruning he had found the anonymous letter writer. On Monday Mr. Bruning informed the court that a BRK employee who was responsible to submit smoke alarms to UL for testing had just been found. Mr. Bruning intended to call the new witness to testify. BRK Brands objected but ultimately the judge permitted Mr. Bruning to call the witness but the defense was entitled to take his deposition first.

Mr. Bruning began the trial, selected a jury, gave opening statements and then examined dozens of witnesses. Court recessed one day so the lawyers could travel to Chicago and take the BRK Brands employee’s deposition. In his deposition the employee stated there was a culture of cheating at BRK Brands. He said he was told to alter products before submission to UL or he would lose his job. He stated that he came forward with this information because it bothered him that millions of people were at danger because of smoke alarms that did not work.

Video of the recorded deposition was shown to the jury when the lawyers returned to St.Louis. At the end of the trial Mr. Bruning asked the jury to assess Mary Gordon’s damages at 20 million dollars for the deaths of her two children. The jury of 12 deliberated for 1½ days until they reached a verdict. The jury returned a verdict in favor of Mary Gordon and against BRK Brands for 20 million dollars for the children’s deaths. On top of that the jury also assessed punitive damages against BRK Brands for 30 million dollars.

The 50 million dollar verdict against BRK Brands was one of the largest verdicts of it’s kind in the United States. It was the largest verdict ever against a smoke alarm manufacturer. The actual verdicts signed by the jury can be seen here. Video news coverage or the trial can be seen here.