Representing a burn survivor.

Every year an estimated 20,000 people die in fires, and 75,000 to 100,000 people are hospitalized with fire-related injuries.(1) Many of these injuries are caused by fires that occur as a result of negligence or faulty products. In other kinds of burn cases, injuries result from chemical spills.

Representing a burn survivor often involves complex issues of liability and damages. This article offers some advice on establishing causation but focuses primarily on proof and presentation of damages.

Fortunately, there are many sources of information to help determine the cause of a fire or chemical spill. These include testimony from the burn victim and eyewitnesses, examination of the scene, and medical reports of the burns.

Consider the following example:

A blast furnace operator is splattered by droplets of molten metal, which set his supposedly flame-retardant uniform on fire. Rather than self-extinguishing as warranted, the uniform burns for at least 60 seconds, leaving the worker severely burned and requiring months of medical treatment and physical therapy.

A lawyer handling this case will probably file a lawsuit against the supplier of the safety uniform, alleging that the uniform should have immediately self-extinguished. The uniform supplier may claim that the blast furnace operator was so overwhelmed by molten metal that no flame-retardant uniform could have self-extinguished or provided any real protection.

As always, early involvement in a case provides a significant advantage, enabling the attorney to direct an accident reconstruction while witnesses still recall details and physical evidence remains at the scene, Because the burn survivor may at first be in shock or heavily medicated, an initial investigation will rely largely on testimony from witnesses.

In any burn case, all eyewitnesses should be interviewed to determine the position of the burn victim, the fire's ignition point, the cause of ignition, the path the fire took, and what the flames or smoke looked like.(2)

The attorney should interview all emergency personnel, including first-aid providers, members of ambulance and med-evac crews, emergency room nurses, and physicians. In the example case, medical professionals who regularly treat burns may be able to distinguish between burns caused by molten metal and those caused by flames. The attorney should ask detailed questions about the depth, color, and location of burns and request that photographs be taken to document injures.

Any scrap of physical evidence could help unravel the cause of a fret In clothing cases, the attorney must try to obtain all remaining clothing--even if only charred shreds. All emergency personnel, including hospital staff, should be asked about the existence of any additional pieces of fabric.

In the more likely scenario, when the lawyer becomes involved in the case long after initial investigations have been completed by others, reconstructions will depend in large part on evidence collected by others, testimony of witnesses, and conclusions of initial investigators. The attorney must approach all these reports cautiously. In any catastrophe, emotions run high, thereby coloring perceptions. Well-meaning but inexperienced people at the scene may draw inaccurate conclusions about the cause of the fire, and these conclusions find their way into hospital and police records. Thorough investigations conducted by competent cause and origin experts will establish liability authoritatively.

In the sample case, eyewitness testimony about how long the worker's clothing was in flames--more than 60 seconds--will refute the uniform supplier's theory that the uniform was overwhelmed immediately by a large quantity of molten metal. Because a fire needs both air and fuel to burn, the uniform could not have been completely consumed on contact by molten metal; if it had, it would not have been able to serve as "fuel" for more than 60 seconds.

Documenting Medical Treatment

A burn survivor's course of treatment, depending on the severity of burns, is usually protracted and complicated. Burns involving more than 20 percent of the body surface or any deep (third-degree) burns over 10 percent of the body surface are classified as critical by the American Burn Association. A first-degree burn is a superficial one injuring only the epidermis; a second-degree burn destroys the epidermis and injures part of the dermis; a third-degree burn destroys the epidermis and dermis.(3)

Many burn centers routinely photograph and videotape a burn survivor's treatment for teaching and rehabilitation purposes. Some hospital burn units give copies of these records to the rehabilitation center, where the burn patient will be treated after being released from the hospital. The attorney should check for these materials at the client's hospital and request copies.

At trial, defendants may attempt to exclude these photographs and videotapes on the grounds that they are prejudicial. They may be graphic and are likely to evoke an emotional response, but they should be admissible because they help medical care providers explain the injuries to the jury.(4)

Documentation should include the early stages of treatment. For example, burn victims need tremendous amounts of intravenous fluid to prevent shock and compensate for the loss of body fluids. Injection of these fluids often causes the body to swell to twice its normal size.

A patient who is suffering from smoke inhalation probably will be given mechanical ventilation. If respiratory insufficiency is severe, a tracheostomy may be performed.

Most burn patients also undergo daily debridements (scraping away of dead skin) and escharotomies (deep surgical incisions to release pressure on arteries and veins caused by swelling). Although these procedures are usually performed while the patient is under sedation, they contribute to a long and painful recovery.

A severe burn has a profound impact on organs not located directly in the burned area.(5) Aside from pulmonary complications, burn survivors often suffer from cardiovascular, gastrointestinal, and neurologic complications.

After hospitalization, burn patients may undergo months of physical and occupational therapy. One way to effectively explain the pain and suffering involved in these procedures is to show the jury some devices specially made for burn therapy.

For example, after skin grafting and other surgical procedures are completed, burn patients are fitted with custom-made pressure garments. These are pulled over burned areas and worn up to 23 hours a day for as long as two years to prevent thickening of burn scars.

Therapists also fit patients with special splints for fingers, arms, legs, and neck to prevent contractures and deformity. Contracture is a condition of restricted movement caused by thickened tissues supporting muscles and joints.(6)

Some burn patients may undergo tissue expansion surgery. This requires insertion of silicone bladders, resembling balloons, under undamaged skin adjacent to the scarred area. The bladders are equipped with a plastic tube through which saline solution can be injected to stretch the healthy skin. Over a period of weeks, this process stimulates the growth of additional skin to help cover the damaged area.

All burn patients experience excruciat-ing pain, because nerve endings are exposed and damaged when skin is burned away. Also, when skin grafting is performed, the donor site essentially becomes a painful second-degree burn.

The tremendous pain and suffering patients experience is often not well documented in a burn unit, where pain is common. If graphic evidence is lacking, one way for the attorney to present the burn survivor's ordeal is through the testimony of nurses and therapists who work with the burn unit. Because many people are involved in a patient's complicated care, the attorney should screen the nurses and therapists to determine which care providers really know the client.

It is a good idea to ask family members to keep a diary to record the patient's condition during treatment and their own feelings about the injury. This personal record will be valuable when writing a settlement demand or preparing for trial. Diaries are particularly valuable when conveying information about procedures performed when the patient was heavily medicated or when, understandably, the patient wanted to forget about the pain.

Burn unit social workers make excellent witnesses. They usually meet with the family as soon as the burn survivor is admitted to the hospital, then they begin the slow process of preparing the family for the survivor's altered appearance and physical limitations. These professionals understand the psychological stages a survivor experiences in the struggle to cope with traumatic injury.(7)

Thorough documentation of the client's treatment can be incorporated into a videotaped settlement brochure. The brochure summarizes the liability and damages parts of the case. The attorney should find an experienced video technician to develop a coherent presentation from videotapes and photographs of the client's treatment and therapy sessions, interviews with medical providers, and statements from the burn survivor and family members.

When presenting economic losses, it should be made clear that a burn injury has an obvious impact on future earnings. limitations result from amputation, loss of range of motion, severe disfigurement, loss of sight or hearing, and other injuries.

Even a burn survivor who appears to have made a "complete" recovery may have continuing economic losses. For example, because layers of skin and nerve endings were destroyed, survivors frequently lose sensation in the skin as well as their ability to regulate body temperature. As a result, some may not be able to resume previous occupations. An electrician or welder, for example, may no longer be able to feel the proximity of a dangerously hot object. An outdoor worker may no longer be able to withstand severe temperatures.

The consequences of a severe burn, furthermore, will require care for the rest of the person's life. In many cases, contracture releases and reconstructive surgeries continue to be performed decades after the burning. The assessment of the cost of this lifetime care is best presented by a rehabilitation expert who has reviewed medical records, spoken with health care providers, summarized the patient's future needs, and projected the costs of needed services.

Proving a Defective Clothing Case

Many workers--electricians, transporters of flammable materials, oil refinery personnel--are often exposed to potential sources of fire. For these workers, a proper safety uniform is essential. Because they and their employers are often not knowledgeable about the performance and durability of uniforms, manufacturers, distributors, and launderers of industrial uniforms have a duty to help them select proper uniforms and to pro vice adequate instructions for their proper care.

In the example of the blast furnace operator, the worker was wearing an appropriate flame-retardant garment that met standards that were set by the American Society for Testing and Materials.(8) Flame-retardant uniforms are specified for work sites where there is exposure to a possible ignition source. They are expected to provide a limited amount of protection and not contribute to the worker's injuries by continuing to burn.

In the example, however, the uniform continued to burn. The attorney must determine whether the fabric manufacturer or uniform supplier warned either the employer or workers that the flame-retardant property of the garment could be degraded either by adding a flammable contaminant OF by improper laundering. It is known that flame retardant can be removed by extended use and laundering.(9) After the retardant is removed, the uniform burns like regular cotton.

The supplier of a supposedly flame-retardant uniform that continues to burn may be liable for injuries due to the uniform's failure. However, because a flame-retardant uniform does not provide 100 percent protection, damages are limited to only those "enhanced" by the defective product. A qualified expert must calculate which burns were so enhanced.

Spoliation 

A common aspect of burn cases is that crucial physical evidence--such as a flammable uniform--is often destroyed in the fire. In these cases, the defendants are likely to claim that the plaintiff, not the fire, destroyed the evidence.

If spoliation--intentional destruction of evidence--is established, the evidence may be precluded, and a fact finder may infer that the destroyed evidence was unfavorable to the party responsible for its spoliation. To determine whether the evidence should be precluded, courts typically consider the degree of fault of the party who altered or destroyed the evidence and the degree of prejudice suffered by the opposing party.(10)

Spoliation should not apply when evidence is destroyed in a burn case. To allow this would reward the manufacturer of the product for the product's defect. Further, the destruction of the evidence does not necessarily prejudice the defendant, because a substantially similar product may be examined and tested by the defendant's experts.(11)

Defendants in burned fabric cases also frequently raise the issue of federal preemption under the 1 flammable Fabrics Act (FFA).(12) This law provides a minimum flammability standard for all clothing fabric. Defendants often claim that the fabric need not meet state statutory or common law flammability requirements when it complies with the FFA.

Fortunately for plaintiffs, there is a well-established presumption against federal preemption in Cipollone v. Liggett Group.(13) Further, there is a strong argument that the FFA preempts only state flammability standards that are less strict than federal standards.(14)

If the case involves an allegedly flame-retardant fabric, courts are less likely to find that the cause of action is preempted, because the FFA regulates flammable fabrics, not flame-retardant fabrics. Flammable fabrics are regulated and tested for their "ease of ignition."(15) Fire-retardant fabrics are measured for their "resistance to propagation of flame."(16)

Proving a Chemical Burn Case

Many burns are caused by exposure to chemicals, such as acids and corrosives. Chemical manufacturers and suppliers may be liable for improper labeling, packaging, or marketing of products.

Consider the following example:

While moving a piece of equipment, a worker tips over and breaks a 6 1/2 gallon glass bottle of sulfuric acid clad in a styrofoam container. The acid spills onto and severely burns the worker.

An attorney who is trying this kind of case must be aware of the safety requirements normally imposed on manufacturers and distributors of hazardous chemicals, such as performing the required "hazard analyses."

This well-established engineering approach to accident prevention is designed to anticipate situations in which a product might pose an injury in light of foreseeable use.(17) The hazard analysis applies to the product and to methods used for packaging, labeling, and marketing it. The analysis should include evaluation of potential leakage and spillage during transportation, storage, use, and disposal of the product.

During transportation, chemical manufacturers must comply with requirements of the Department of Transportation.(18) In the case described above, department regulations permit the packaging of glass bottles of sulfuric acid in styrofoam. However, these regulations apply only to transporting the acid. The manufacturer's hazard analysis should include factors related to the product's safe handling and use.

The attorney must determine whether the manufacturer and distributor provided adequate warnings and instructions for safe use of a flammable, corrosive, or combustible product. Minimum standards for labeling can be found in the American National Standard Institute's standard for precautionary labeling of hazardous chemicals(19) and in National Safety Council publications.(20)

The Hazard Communication Standard, which mandates chemical labeling, also requires that a Material Safety Data Sheet with hazard information be made available to workers.(21)

Warnings and instructions accompanying hazardous products must

* identify the hazard (for example, sulfuric acid is corrosive and causes burns);

* state a signal word indicating the relative severity of the risk (for example, DANGER!);

* describe other potential hazards of the product;

* state precautionary measures that can be taken; and

* provide instructions for proper handling and storage.(22)

Warnings should also include information concerning the proper personal protective clothing to be worn when handling hazardous chemicals. For example, acid-resistant suits are necessary when transporting acids; flame-retardant clothing is more appropriate when handling combustible powders.

Regulations and required warnings do not necessarily provide the final word. The attorney handling the sample case, for example, should also determine whether there were economically and technically feasible methods of guarding against this kind of spillage. The manufacturer's hazard analysis, for instance, should have indicated that the glass bottle be clad in a "second-skin" made of impact-resistant plastic capable of withstanding an impact from heavy equipment or falling tools.

The attorney should also determine whether the container is the smallest feasible size for the chemical. Based on the user's production requirements, it may not have been necessary for the distributor to deliver the chemical in such large containers, which increase the risk of harm in a spill.

Burn cases--whether caused by fires or chemical spills--present many challenging liability and damages issues. The severity of injuries suffered by burn survivors and their prolonged and painful treatment call for effective advocacy. With proper investigation, thorough documentation, and careful preparation, these challenges can be overcome.

Notes

(1) ANDREW M. MONSTER SEVERE BURNS: A FAMILY GUIDE TO MEDICAL AND EMOTIONAL RECOVERY xvii (1993). (2) See generally NATIONAL FIRE PROTECTION ASS'N GUIDE FOR FIRE AND EXPLOSION INVESTIGATIONS (1995). (3) MONSTER, supra note 1, at 9, 234. (4) LEONARD PACKEL & ANNE BOWEN POULIN, PENNSYLVANIA EVIDENCE [sections]416.2 (1987). (5) See, qenerally HUGO F. CARVAJAL, BURNS IN CHILDREN: PEDIATRIC BURN MANAGEMENT (1988). (6) DORLAND'S MEDICAL DICTIONARY 373 (28th ed. 1994). (7) See generally Patricia N. Watkins et al., Psychological Stages in Adaptation Following Burn Injury, 9 J. BURN CARE & REHAB. 376 (1988). (8) STANDARD PERFORMANCE SPECIFICATION FOR PROTECTIVE CLOTHING FOR USE BY WORKERS EXPOSED TO SPECIFIC MOLTEN SUBSTANCES AND RELATED THERMAL HAZARDS Standard F-1002 (Am. Soc'y for Testing and Materials 1986) (reapproved 1990). (9) Helena Makinen, The Effect of Wear and Laundering on Flame-Retardant Fabrics, in 4 PERFORMANCE OF PROTECTIVE CLOTHING 754 (James P. McBriarty & Norman W. Henry eds., 1992). (10) See, e.g., Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78-79 (3d Cir. 1994), Scout v. City of Gordon, 849 F. Supp. 687, 691 (D. Neb. 1994); Johnson v. Washington Metro. Area Transit Auth., 764 F. Supp. 1568, 1579-80 (D.D.C. 1991). (11) Schmid, 13 F.3d 76, 79-80. (12) U.S.C. [sections]1191-2004 (1995). See,qenerally Brech v. J.C. Penney, 698 F.2d 332, 334 (8th Cir. 1983); Simien v. S.S. Kresge Co., 566 F.2d 551, 557-58 (5th Cir. 1978), Raymond v. Riegel Textile Corp., 484 F.2d 1025 (1st Cir. 1973). (13) 112 S. Ct. 2608, 2617 (1992). (14) 15 U.S.C. [sections]1203(b) (1995); see American Apparel Mfrs. Ass'n v. Sargent, 384 F. Supp. 289, 90-91 n.4 (D. Mass. 1974). (15) See R. Bruce LeBlanc, Flammability and Fire Resistance of Textiles, AM. DYESTUFF REP., Dec. 30, 1968, at 35 (discussing American Association of Textile Chemists and Colorists test method 33-1966). (16) Id. (discussing test method 33-1962). (17) NATIONAL SAFETY COUNCIL, ACCIDENT PREVENTION MANUAL FOR INDUSTRIAL OPERATIONS 4-1 to 4-5 (4th ed. 1959). (18) 49 C.F.R [sections]178 (1995). (19) ANSI STANDARD Z129.1 (Am. Nat'l Standards Inst., Inc. 1994). (20) NATIONAL SAFETY COUNCIL, ACCIDENT PREVENTION MANUAL FOR INDUSTRIAL OPERATIONS, ADMINISTRATION AND PROGRAMS 429 (9th ed. 1988). (21) 29 C.F.R [sections]1910.1200 (1995). (22) ANSI STANDARD Z129.1, supra note 19, at 5.