Spotlight on Winning Litigation Strategies: Ed Ozog Obtains Summary Judgment on Behalf of Target Defendant in 69 W. Washington Case
August, 2007
The Fire and Evacuation
At approximately 5:00 p.m. on October 17, 2003, workers smelled something burning in the Illinois Secretary of State’s Business Services Office (“BSO”) on the 12th floor of the Cook County Building at 69 W. Washington Street, Chicago, Illinois. A BSO employee alerted others when she saw smoke coming from a storage room on the south side of their tenant space. One female employee went to the storeroom and peeked in for one to two seconds. Amidst the black smoke at ceiling level, she saw flames “right where the light generally is.” The flames “were going across the back there . . . the back of the closet . . . it had got to the point where the flames were right where the light generally is.” There was a box on top of a storage unit on the south wall of the storeroom near the light and “the box at the top was on fire and the fire was like a fanning down-type mode.” The fire was “. . . coming from that area in the ceiling . . . where the fixture is supposedly at. . . .”
A security guard in the building lobby made repeated announcements on the public address system for the general evacuation of the building after the report of the fire. Occupants used both the northwest and the southeast stairwells to evacuate. The metal stairwell doors locked, preventing re-entry to any floor except the ground floor.
The arriving fire department personnel proceeded to the 12th floor southeast stairwell. Survivors who were evacuating down the stairwell testified that as Chicago firefighters prepared to open the 12th floor door to fight the fire, at least one Chicago firefighter directed the evacuating civilians back up the stairwell. When the firefighters opened the 12th floor door, the stairwell immediately became charged with hot gases and thick black smoke forcing the fully protected firefighters to the floor to escape the intense heat and dense black smoke.
Thereafter, a series of additional alleged firefighting missteps occurred, including: failing to man the lobby communication post to hear victims in the southeast stairwell calling for help on the firemen’s phones located in the stairwell; failing to complete a search of the southeast stairwell; failing to report that the search was not completed; failing to ascertain the location of victims who utilized cell phones to call 911; and failing to heed the comments of surviving evacuees of the southeast stairwell that there were additional victims. Six people died and fifteen others sustained injuries. Public outcry was intense, demanding reasons why occupants were killed in a County-owned building.
Separate Commissions Appointed
The Governor of Illinois appointed James E. Witt Associates to conduct an independent review of the fire. The Cook County Board President appointed Abner Mikva to chair a commission consisting of retired judges and citizens to examine the events of the fire. The Witt Commission’s final report was thousands of pages long, culminating in at least 81 recommendations. The Witt Commission utilized the National Institute of Standards and Technology (“NIST”) to conduct extensive fire burn testing and modeling of the fire. This modeling assumed ignition in an area immediately below the light fixture as identified by the sole witness. The Mikva Commission conducted televised public hearings, interviewed hundreds of witnesses and retained numerous experts, including cause and origin investigators. The Mikva Commission also retained an expert at the University of Maryland Fire Protection Engineering Department to conduct smoke movement computer modeling. This modeling also assumed the point of origin to be an area immediately below the light fixture. The Mikva Commission report with appendices was hundreds of pages long with numerous recommendations and criticisms.
Leading Plaintiff’s Firms File Suit and Clausen Miller Retained by Cooper Lighting, Inc.
Suit was immediately filed on behalf of the deceased and injured parties by the top four plaintiff’s personal injury firms in Chicago: Clifford1, Corboy2, Power3 and Cochran4. Defendants included the building management and the security guard services. The architect, general contractor and electrical sub-contractor were sued on the basis of fire-spread theories regarding improper construction of the office space. The fire phone manufacturer/installer was sued because the fire phones allegedly did not work, and a mechanical contractor was sued for inadequate servicing of the vents to a smoke tower. Both the County and City were sued for various counts of willful misconduct; the willful and wanton counts against the City and County withstood motions to dismiss based on statutory immunity. The light fixture manufacturer and component ballast manufacturer were sued by all 22 plaintiffs for causing the fire.
Clausen Miller5 was hired by the light fixture manufacturer, Cooper Lighting, Inc., three weeks after the fire and the day before the Court’s scheduled hearing to expedite discovery.
Emotions Run High, Severely Challenging the Opportunity for a Fair Hearing
In the early stages of the case, plaintiffs’ lawyers made numerous statements calling for answers and demanding accountability by those responsible. As discovery proceeded, the heartbreaking stories of the victims were told.
After spending nine minutes on her cell phone begging for help from the Chicago 911 Center, the victim gasped her last breath, collapsed and dropped the cell phone to the floor. The 911 operator then hung up on the cell phone as other victims could be heard on the phone’s speaker screaming for God to intercede and crying out for help. One female victim testified that the thick black smoke in the stairwell prompted her to go to the ground in an attempt to suck air from the space created at the base of the locked stairwell door and the floor. She survived, while six others in close proximity to her died. Injured survivors had similar tales describing their horrible ordeal.
The testimony of the responding firefighters confirmed the horrendous conditions in the southeast stairwell. Two firefighters who were sent to the floor immediately above the 12th floor fire floor testified that they forced the southeast stairwell door open with a pry bar and dove into the tenant space from the stairwell because of the intense heat and supercharged black smoke generated when the 12th floor door was forced open. They testified that they each took a knee to thank God they were still alive, but they did not know that several floors above them victims lay expiring from the smoke and deadly gases.
The defense was continually confronted with emotionally charged facts while endeavoring to adduce objective facts that would support a defense.
Extensive Destructive Testing Fast Tracked
The public outcry for an answer to the cause of the deaths prompted the presiding Cook County judge to order an expedited inspection, destructive disassembly and destructive testing of the light fixtures within the storeroom. We succeeded in obtaining a short extension of time to modify the proposed destructive testing protocol and to retain experts to attend destructive tests. The destructive testing performed on recovered artifacts at an electrical engineer’s offices included x raying, microscopic inspection, scanning electron microscopy (SEM), and energy dispersive spectrometry (EDS). More than 25 experts of varying disciplines spent five days conducting the destructive testing that was completed within 60 days of the fire.
The public, the police, and the plaintiffs continued to press for an answer for the cause of the deaths. The City of Chicago petitioned the court to conduct additional tests on similar light fixtures recovered from the scene. The judge heeded the City’s argument that further abusive tests of the fixtures might produce an insight into the cause of the fire. The requested additional tests proceeded. This new testing was designed to identify circumstances where abuse of the light fixture, including shorting transistors, would induce enough energy to be released from the fixture to cause a fire. In addition, the energized fluorescent lamps were manipulated in an attempt to cause arcing at the lamp pins and lampholder contacts that would deteriorate the lampholder and cause a release of hot material from the fixtures.
While the foregoing testing proceeded, the fire department received a report from the Illinois State Crime Lab that one of the samples taken in the storeroom tested positive for gasoline. A substantial dispute, still unresolved to this day, ensued as to the credibility of the sample due to a high xylene peak in the gas chromatograph of the sample. The Mikva Commission retained a chemist to testify that the positive gasoline sample must be attributable to post-fire contamination. In contrast, supervisors at the State Crime Lab confirmed that the sample was subject to internal audit procedures and the results accurate.
The CM Defense Plan
In defense of the actions, we worked with our retained cause and origin investigator to develop a thorough discovery plan. We believed the evidence supported the theory that the fire originated in the southeast corner of the storeroom, quickly propagated up the west wall and the south wall shelving unit to the ceiling, and thereafter ran across the ceiling to where the witness observed the fire. We believed that the witness’s observation was therefore consistent with the flame front of a fire rolling across the ceiling to an area where the light fixture was “supposed to be at.” In opposition, plaintiffs urged that the witness observed fire emanating from the light fixture as evidence that the fire originated at the fixture. The litigation was intense. More than 100 depositions were taken of eyewitnesses, experts and firefighters from October 2003 to April 2007.
Our discovery plan included the following:
We identified important witnesses to make our case as well as those witnesses who might offer evidence inconsistent with our theory.
We developed the building blocks of the evidence needed to support our theory, while at the same time analyzing ways in which we could explain or minimize the impact of potentially contradictory evidence.
We developed an outline to elicit testimony to prove every positive aspect of the destructive testing. This included eliciting testimony about specific facts that unequivocally supported our theory of origin and fire propagation.
We also cross-examined witnesses to demonstrate that the positive aspects of the destructive testing unequivocally eliminated alternative inferences that could be drawn from the scientific testing and hence eliminate alternative theories as to our client’s accountability.
Where scientific testing arguably permitted alternative inferences, we adduced other facts that prohibited adverse inferences to be drawn from the evidence.
Alternatively, we attempted to narrow the scope of the inference that could be drawn from a particular piece of physical evidence.
We identified the source of any potentially conflicting evidence to our theory and developed a line of cross-examination to show that the evidence was not contradictory but rather consistent with our approach. Further, we elicited helpful admissions.
Where we could not get witnesses to agree that evidence was consistent with our approach, we narrowed the scope of the inference that the plaintiffs might draw from the particular witness statement.
We also developed arguments that the scientific evidence would not support contradictory opinions as to cause.
We examined relevant cases governing the admissibility of evidence in a cause and origin situation, and structured arguments based upon court opinions.
We utilized relevant case law to bar contradictory opinions that were based upon insufficient scientific support or faulty scientific reasoning/logic.
We also cross-examined various experts to obtain admissions useful to the defense of our case. In this regard, we elicited testimony of various experts agreeing to cause and origin principles set forth in NFPA 921 Guide for Fire and Explosion Investigation such as:
1.The origin of a fire is different from the cause of a fire.
2.The mere presence of fire alone is not enough to have an opinion to a reasonable degree of certainty that the object burning was the source of ignition.
3.The mere presence of electrical wiring or equipment at or near the origin of a fire does not necessarily mean that the fire was caused by electrical energy.
4.Neither a fuel by itself nor an ignition source by itself cause a fire.
5. A competent ignition source will have sufficient temperature and energy and will be in contact with the fuel long enough to raise the first fuel ignited to its ignition temperature.
6. The ignition process involves the components of heat generation, transmission and temperature elevation.
7. The ignition source must be of sufficient energy and exposed to the fuel for sufficient duration so that the first fuel does not otherwise dissipate the heat, while also meeting the material characteristics to burn.
8. Before a fire can properly be determined to have been caused by electricity, the source of the electrical heat must be identified. The heat generated must be sufficient to cause ignition of the first ignited fuel. A path or method of heat transfer between the heat source and the first ignited fuel must be identified.
9. While an arc may be a competent ignition source for many fuels, its character as a competent ignition source is dependent on the duration and magnitude of the arc. In other words, an arc may be so brief and localized that it might not ignite a solid fuel that it was next to or close to.
10. A cause and origin investigator definitely wants to establish the method and mode of failure of an electrical appliance in order to say that it was the cause of a fire.
11. The plaintiffs were obliged to prove the absence of other reasonable secondary causes in order to prevail. In other words, the plaintiffs had to negate other potential causes of the fire.
12. An investigator should use the scientific method for gathering data, hypothesis development and the testing of any hypothesis with respect to consideration of any potential ignition source.
13. Compliance with NFPA 921 is a recognized guide for assessing the reliability of expert testimony in fire investigation.
14. We elicited the expert’s agreement that a proper investigation of the fire should conform with the standards set forth in NFPA 921.
After a review of tens of thousands of documents and reports, our plan included taking a series of depositions in an order that was conducive to disclosure of relevant information in a controlled manner. In order to effectuate our plan, we had to work with more than twenty separate law firms to schedule the witnesses in the sequence that we sought. Timely scheduling of the witnesses for deposition testimony was essential to our client’s case in light of the numerous conflicting interests in the litigation. All of the foregoing was done in a manner that was efficient and cost effective.
Victory for CM Client
Having developed the issues, we prepared and filed a Motion for Summary Judgment claiming that the light fixture was not the cause of the fire. Summary judgment was obtained on the basis of our careful attention to detail. We prevented opposing parties from developing scientifically consistent admissible theories that would implicate the light fixture as the cause of the fire. Once the target defendant, our client is now out of the litigation and absolved of any alleged culpability, as more than another hundred depositions proceed in advance of trial. We have been praised by people involved for this “unprecedented” victory against the best plaintiff’s lawyers in the region.
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1Clifford Law Offices
2Corboy & Demetrio PC
3Power, Rogers & Smith, P.C.
4Cochran, Cherry, Givens, Smith & Montgomery, LLC
5Edward Ozog, Paul Bozych, Dom Savaiano and Mindy Medley formed the core defense team
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