Are you sleeping on a bed of gasoline?
Reasons Why Your Mattress May Be A Fire Hazard
by
C. Steven Fury
710 Tenth Avenue East
Seattle , WA 98102
(206) 726-6600
POLYURETHANE FOAM BURNS LIKE GASOLINE
Untreated polyurethane foam is highly flammable material when exposed to open flames. It burns so fast and intensely that it has been called "solid gasoline" and can mimic petroleum accelerants in a fire. Although cotton batting will burn when exposed to open flames, it is not nearly as flammable. The widespread use of polyurethane foam in mattresses has caused a serious safety problem from ignition of mattresses with open flames. In 1984, the Consumer Product Safety Commission issued a report concluding:
Mattress and bedding fires have long been recognized as a major cause of residential fires and fire casualties . . . Small open flames such as matches and lighters were found to the source of ignition in almost one-third of all mattress and bedding fires. Of particular concern is the finding that over one-half of the fatalities in these fires are children under five years.
Separate from this report, the flammability of polyurethane foam and its fire hazard risk have been well-known within the bedding industry for years. Because of concern over the flammability of polyurethane foam, various regulations and standards were enacted in the 1970's and early 1980's. For example, the polyurethane foam in airplane seats and car seating is required to be fire-retardant by federal regulations enacted in the 1970s. In 1979, California passed a law requiring a fire retardant in the polyurethane foam used in mattresses sold in California . Similar regulations have been passed in the city of Boston , New York and New Jersey Port Authority and elsewhere. Polyurethane foam which has not been fire-retarded is banned for residential use in England . There is no federal requirement.
Polyurethane foam manufacturers have actively notified their customers, including mattress manufacturers, of the hazards of polyurethane foam. They warn of its extreme flammability when exposed to open flame and recommend that the ultimate consumer be warned. These communications from the foam manufacturers also recommend that special precautions be taken for storage of the raw foam.
In 1979, Los Angeles Times published a series of articles that reported on the issue of the great hazard from open flame ignition of mattresses with polyurethane foam. However, concerted follow up action on this serious safety problem has been strongly absent.
HOW MATTRESSES ARE MADE
Mattresses are typically manufactured using a spring "unit" as the core. Successive layers of materials are place on both sides of the spring unit and the entire assembly then covered by a "ticking" material. The layers going out from the spring unit on both sides are:
1. Insulator Pad. Stiff, fibrous, usually polyester pad approximately 1/2 inch thick;
2. Cotton Batting. Approximately 1/2 inch of cotton fibers. Six pounds total used in this mattress;
3. Polyurethane Foam. One-half inch of polyurethane foam just beneath the ticking.
Variations in the orientation of these structures occur in other types of mattresses. (Some mattresses are made with a layer of polyurethane foam quilted to the ticking. Where, as here, this is not done, it is called a "smooth top" mattress rather than a "quilted" mattress.)
1972 FEDERAL FLAMMABILITY ACT
Mattresses catching fire from cigarettes are the single greatest cause of mattress and bedding fires in the United States . Before 1972, most mattresses did not have polyurethane foam. They were made with cotton batting below the outer layer. Cotton batting not treated with fire-retardant material will catch fire from a lighted cigarette dropped on the mattress. It would smolder for a long period of time before catching fire.
The Federal Flammability Act was passed in 1972 requiring that all mattresses pass the cigarette test. That test requires that when a lighted cigarette is placed on a mattress, it will not ignite within 5 minutes. Polyurethane foam will generally not ignite from a smoldering cigarette because it melts away from the cigarette. Consequently, it became the standard material used on the outside layer for manufacturing mattresses. As an alternative to polyurethane foam, the cotton batting can be treated with boric acid or other boron compounds. Such treatment costs about 2¢ per pound of batting (10¢ to 25¢ in a typical mattress here) and also improves the fire performance of the mattress as a whole, even where untreated polyurethane foam is used.
HOW TO MAKE SAFER MATTRESSES
Various methods are available to reduce the flammability of mattresses containing polyurethane foam. These include:
1. Adding chemicals to the foam to make it fire-retardant. Using this material instead of untreated polyurethane foam would add a materials cost of less than $1 in a typical mattress.
2. Use of alternative foam materials such as neoprene. Use of this material would add approximately $10 - $15 in materials costs for a typical single size mattress.
3. Use of fire barrier outside of the polyurethane foam to encapsulate the foam and insulate it from open flame in a fire situation. Some ticking materials are fire-retardant. Other designs use a barrier product between the ticking and the polyurethane foam. These barrier materials could add as much as $25 to the materials cost for a typical mattress.
4. Cotton batting can be made fire-retardant by incorporating boric acid powder during the "garnetting" process by which cotton batting is made. The materials for boric acid treatment costs 10¢ - 20¢ in a typical mattress . Although boric acid in the cotton batting does not affect the flammability characteristics of polyurethane foam, it does reduce the speed and intensity with which the mattress as a whole will burn.
A POLYURETHANE FOAM MATTRESS CASE SUMMARY
Confidential V. Serta, Inc., And Coyne Mattress Co.
NATURE OF THE CASE
Dangerous, highly combustible ingredients in defendants' mattress caused then 4 year old "Jane Confidential" to have her faced burned off on May 31, 1988 from a fire in her room. The Confidentials lived in Navy enlisted personnel family housing in Silverdale , Washington at the time of the fire. The defendants' mattress was manufactured in Oahu , and was purchased from the Navy Base Exchange when Mr. Confidential previously was stationed there. The case was filed in Hawaii because Hawaii 's product liability law is more favorable than in Washington . It was part of a bunk bed set marketed especially for juveniles. Despite multiple surgeries at the Burn Center at Harborview Hospital in Seattle , Washington , 9 years later, Jane Confidential's face, as well as her hand and arms show the effects of her burn injuries. Nothing more can be done medically to help this unfortunate young girl.
The product was an innerspring bunk bed mattress containing polyurethane foam. In this case, the fire was started by Jane playing with a cigarette lighter that had been left at the house by a friend the night before during a picnic. It was unknown to her mother that she had the lighter. The fire rapidly spread to the mattresses which burned rapidly and intensely creating great heat (simulated tests indicated temperatures in excess of 1500° F). The heat caused radiant burns to Jane's face and hands. She was not burned where she was wearing her sister's T-shirt, which covered her legs. Her hair, eyebrows and eyelashes were spared.
Plaintiff's theory was that the intense heat that caused the radiant burns to Jane was caused by the volatile, highly flammable non-treated polyurethane foam in the mattresses. The Navy investigators looking into this matter immediately after the fire came to the conclusion: quote from report - "The foam was the culprit."
Following up on leads from the Navy PX in Honolulu , Hawaii , plaintiff established that the mattresses which hurt Jane were manufactured by Coyne Mattress Company, a licensee of Serta, Inc. (They were manufactured using a Serta, Inc., label.) The product ID was accomplished through Coyne's admission that they sold similar products to the Navy PX at the time in question and investigation contacting other customers identified on invoices.
Defendants admit that Coyne made mattresses of this type at the time. They put in no fire-retardant materials and provided no warnings whatsoever at the time. In 1987 the Sleep Product Safety Council, an industry group, developed a joint warning that has since been used by most mattress manufacturers in the United States . Copy attached. This warning began to be used approximately one year after the mattress in this case was purchased by Jane's mother. It is the only "warning" of which plaintiff's counsel is aware using a teddy bear as the warning icon.
THE PLAINTIFF
Jane Confidential
DOB : 7/6/83 in Honolulu , Hawaii .
DOI: May 31, 1988.
Number of Surgeries: 15
Initial Hospitalization: 59 days
Medical Expenses: $152,536.20
Future Vocational Losses: $200,000 - $500,000
Future Care Needs: $150,000 - $325,000 - The bulk of the costs are for future cosmetic needs.
Medical Treatment: David Heimbach, M.D., Director of the Harborview Burn Center and Loren
Engrav, M.D., Chief of Plastic Surgery.
THE DEFENDANTS
The sole business of Coyne Mattress Company is to manufacture and sell mattresses, all within the state of Hawaii . Coyne is a licensee and stockholder of Serta, Inc., a privately held corporation owned by its licensees. Serta, Inc., advertises and markets mattresses worldwide under the Serta brand. It provides specifications for the manufacturer of Serta brand mattresses and technical and manufacturing support services. Serta brand mattresses are manufactured by Serta licensees; Serta, Inc., does no manufacturing itself.
Coyne annual sales exceed $6 million; Serta's annual sales (by its licensees) exceed $400 million. Serta, Inc., is one of the three largest mattress manufacturers in the country. Sealy is the largest; Simmons and Serta are neck and neck for second.
The mattress business is fairly incestuous and competitive; there is not a lot of love lost between competitors. The current president of Serta, Edward Lilly, worked for decades for Sealy until he became president of Serta in 1991, bringing with him Al Klancnik, vice president for manufacturing who had held a similar post at Sealy. Lilly replaced the then president of Serta, who is now the president of Simmons. (Simmons was particularly annoyed at Serta for suggesting that the mattress in this case might have been made by Simmons when all the evidence is to the contrary.) There are essentially no current employees of Serta, Inc., who were employed by Serta in 1986 when the mattress in question was manufactured. The head of manufacturing for Serta at the time was either a man who is now dead and or one who was dismissed for poor performance by Mr. Lilly. (Serta does not now know which person held the position and denies that it has any documents that would give the answer.)
DEFENDANTS DID NOT TREAT THEIR MATTRESSES TO REDUCE THE HAZARD OF EXTREME FIRE DANGER
Coyne witnesses testified that they did not use fire-retardant polyurethane foam or other fire retardant techniques in the mattresses manufactured because of costs and because they were not instructed to do so by Serta. They say that had Serta instructed them to do so, they would have used these materials. They defer to Serta on issues of engineering and design. They say they did not use any other fire-retardant methods such as a barrier product because it did not occur to them to do so.
Because they made their own cotton batting, they had the machinery to put boric acid into it. They in fact had a supply of approximately two cubic yards of boric acid that they purchased in the early '70's. They did not put boric acid into the cotton batting used in mattresses because, according to their testimony, the powder got onto the floor and constituted a "slipping" hazard for their employees. They stopped using boric acid in the early 70's (unless there was a custom order from any hotel chain) and did not use it in the mattresses manufactured in 1986, including the one in this case.
PRODUCT IDENTIFICATION
There was no direct documentary identification that this is in fact a Coyne or a Serta mattress. (The parents have no receipts or other documents. The labels on the mattress were burned in the fire. The Navy has destroyed its records.)
Mrs. Confidential testified that she purchased a bunk bed with mattresses at the Navy PX in April of 1986. In April of 1986 the Navy PX System purchased some 26 bunk bed mattresses and some 15 bunk beds from Coyne Mattress Company. Mrs. Confidential testified that the mattress she purchased had a blue background with a spaceship design on it. Coyne manufactured a mattress with a such a pattern as a bunk bed mattress. Plaintiff located an identical mattress and bunk bed set purchased by another customer from the Navy PX within two months of the Confidential purchase by telephoning everyone listed on invoices from Coyne for sales of such mattresses through the Navy. These bunk bed mattresses still have the Coyne/Serta label on them.
THE FIRE
On the evening of May 30, 1988, while Jane's father was at sea in the Navy, the Confidential family had a barbecue with their neighbors . No one then at home in the Confidential family smoked. (Mr. Confidential smoked, but was at sea at the time.) Jane had no experience with butane cigarette lighters. The neighbor smoked and that evening she mislaid her plastic butane cigarette lighter, but did not inform anyone until the next day, after the fire.
On the morning of the fire, because everyone had stayed up late the night before at the picnic, Mrs. Confidential was taking a nap with Jane's younger brother, then 2 years old. Jane was in her room. Mrs. Confidential saw her in the room at 10:00 a.m. and she appeared to be asleep. At approximately 10:25 a.m., Mrs. Confidential woke up and called to Jane to bring a diaper for the younger brother who was wet. At approximately the same time, the smoke alarm in the hall between the master bedroom and Jane's room (a distance of about four feet) sounded. Mrs. Confidential ran to Jane's room and attempted to open the door, but could not do so. She then got the other children out of the apartment and ran back in approximately one minute later. She then was able to open the door to Jane's room. Jane ran out of the room, and Mrs. Confidential left as well, calling the fire department on her way out. The fire department call was received at 10:28 a.m. The responded within one minute (the fire station was very close) and extinguished the fire by 10:37.
FIRE CAUSE INVESTIGATION
The fire was investigated in detail by the fire department chief, the station chief, and by the chief Navy fire investigator for the Western Region who was deceased before his deposition could be taken. They all concur that the fire started in or near the bunk beds from Jane playing with the cigarette lighter, then spread to the mattresses, which burned rapidly and intensely. They all concur that it was the mattresses that caused the intensity of the fire and injury to Jane:
The rapid fire spread in the room of origin, caused by the combustion of the two foam rubber mattresses, was of such intensity and developed in so little time period that the initial investigation led this investigator to believe that some sort of flammable accelerant had been used at the fire scene. However, there was absolutely no evidence of flammable liquids or accelerants used in the fire room. The culprit was the foam rubber.
FIRE EXPERTS
Plaintiff retained five fire experts:
1. Brady Williamson, Ph.D., a professor of material science at the University of California at Berkeley . Under Dr. Williamson's direction, plaintiff conducted burn tests of exemplar mattresses. These and burn tests of mattresses performed by the California Bureau of Home Furnishings in 1991 confirm the rapid burning of mattresses.
2. Frank Roberts, a fire investigator and cause and origin expert from the Seattle area.
3. Robert Schroeder, M.A., a fire cause and origin expert who has a background as a firefighter and is studying for his Ph.D. currently as a student of Professor Williamson.
4. Fred Fisher, P.E. Mr. Fisher is a professional engineer who has expertise in fire modeling. He supervised the burn tests performed by the plaintiff.
5. Beei-Huan Chao, Ph.D. Professor Chao is an assistant professor in the Mechanical Engineering Department at the University of Hawaii and the only combustion scientist in the state of Hawaii . He has never testified before or been consulted as an expert witness in any case. He is a native of Taiwan who has lived in the United States for 17 years. He was located by use of the University of Hawaii course catalog.
All of plaintiff's experts concur that the fire started in or near the mattress and spread rapidly to it. The mattress burned intensely producing great radiant heat. The radiant heat is what burned Jane Confidential. The burns to her were radiant heat burns, not flame burns. The sparing of her hair, eyelashes, eyebrows and clothing proves this.
The defendant retained two fire experts:
1. Donald Perkins is a former firefighter who has an Associates Degree from San Jose State College in fire science. His preliminary deposition was taken, but he did not develop final opinions.
In his preliminary deposition, Mr. Perkins expressed the opinion that the fire started in something other than the mattresses and that this other burning substance is what caused the burns to Jane Confidential. He "knows" this because she survived the fire. In his opinion, mattresses containing polyurethane foam burn so hot and fast that if the mattresses had been burning while Jane was still in the room, the room would have gone to flashover and she would have been killed. Flashover occurs when the temperature rises to a degree such that all flammable surfaces in a room are ignited. The fire investigation photographs that show many materials around the room unburned prove that the room did not go to flashover. Since Jane survived the fire, the burn injuries to her must have been caused by something else.
2. Robert Kadlec, Ph. D., of Failure Analysis Associates, Los Angeles , CA . He was represented to be of the opinion that the injuries to the plaintiff were caused by the explosion of the butane lighter. Defendant's Rule 35 medical examiner also expressed the opinion that the burns were from something exploding.
DEFENDANT'S ADMISSIONS
In deposition, the officers and the managing agents of the defendants have testified in substance as follows:
1. Edward Lilly, President of Serta, Inc. He has testified:
a. Serta's slogan "We make the world's best mattresses" is a puffery statement. It has nothing to do with safety.
b. Safety is not an issue that comes up in the sales presentations; issues of safety are something that he has never thought about.
c. No greater care shall be taken in the safety of products intended to be used by children because "children don't buy mattresses".
2. Al Klancnik, defendant Serta's vice president for manufacturing (who has been identified as an expert witness for the defendant) invented a barrier fire-retardant system while employed at Sealy. He filed a patent application under oath in 1982, four years before this mattress was manufactured. A copy of the "background invention" from his patent is attached.
3. Donald Lee, president and part owner of Coyne Mattress Company, testified:
a. Coyne has taken special care for fire safety with regard to storage of polyurethane foam since 1972 because of its highly flammable character.
b. He has known about the flammability characteristics of polyurethane foam and the availability of fire-retardant foam since at least the early 1980's.
c. The only reason not to use fire-retardant foam is the cost.
d. Coyne had the equipment and supplies to put boric acid fire-retardant in the cotton batting in mattresses, but never did so.
4. Herbert Lee, vice president of Coyne Mattress Company and part percent owner.
a. A non-fire retardant foam mattress without warnings is dangerous.
b. Coyne didn't use fire-retardant foam because Serta did not tell them to do so.
c. Fire-retardant foam in this mattress would have cost $.81.
d. The reason boric acid was not used in the batting is because the powder got on the floor and constituted a slipping hazard for employees.
DEFENSES
The defendants raised the following defenses:
1. Disputed product identification.
2. Government regulations. Use of polyurethane foam is widespread in the bedding industry. It is not prohibited by any federal or Hawaii State regulations. The defendant's mattresses met the Federal Flammability Standard for cigarette ignition.
3. Most materials burn. It is not dangerous for a mattress to be made out of flammable materials.
4. The cost of fire-retarding a mattress is high when considered in the context of the highly competitive mattress industry.
5. Burning of the mattresses could not have caused the injuries to the plaintiff. Something else must have caused these injuries. Had the mattresses caught fire while Jane Confidential was in the room, they would have burned with such intensity that she would have been killed. Since she survived, something else was ignited before the fire spread to the mattresses and that is what burned her.
6. Jane's mother was negligent for failing to properly supervise her such that she had access to the cigarette lighter with which she started the fire and in failing to promptly rescue her.
7. Jane's mother was negligent in failing to properly train her with regard to fire safety.
8. Setting a mattress on fire is misuse of the product and not a foreseeable use of the product.
9. The neighbor was negligent for leaving her cigarette lighter where it could be obtained by a child.
10. Manufacturers of other materials that were in the room may be responsible for manufacturing dangerous products that were highly flammable and contributed to the fire and injury to the plaintiff. The mattresses are not what was lit first. Some other material probably the exploding lighter, injured Jane.
SETTLEMENT
The case settled about a month before trial at a court ordered judicial settlement conference. The settlement judge ordered that the amount of the settlement be kept confidential.
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