PROVIDENCE -- Private lawyers and their fire experts will be allowed to collect material from The Station nightclub fire site and store it in a warehouse where it can be further examined and preserved for testing.
Superior Court Judge Alice B. Gibney said at a hearing yesterday that experts hired by the civil lawyers could begin tagging potential evidence beginning next Wednesday at 9 a.m. The process will continue seven days a week until fire experts are satisfied that they have identified everything that might benefit a plaintiff or defendant for the mass of lawsuits that are expected to be filed in connection with the fire that took 99 lives.
A formal order detailing the way in which evidence will be tagged, sorted and carted away is to be entered Monday.
Lawyers have not yet been given court permission to begin any testing of materials. And they still have to find a place to store the evidence they collect, which as of yesterday, had not yet been selected. Max Wistow, a lawyer who is representing several fire victims and their families, said in court that the attorneys are looking for a facility that is up to 5,000 square feet to hold all of the items they want to preserve for testing.
During an examination of the site on Wednesday, fire experts hired by private lawyers discovered "that substantial physical evidence remains on the site," according to a petition filed with Gibney. Wistow and two other personal-injury lawyers -- Mark Mandell and Mark Decof -- who are pooling their firms' resources to represent more than 30 victims, say they want to remove items such as soundproofing foam, other insulation, parts of the floor, rugs, ceiling and wall debris, wall coverings, structural debris from the stage area in which the fire appears to have started, and furniture debris.
"All of these items of interest constitute potential physical evidence and have potential significance regarding how the fire started and progressed, and why the combustion of materials had such a tragic and deadly effect on the patrons of The Station on February 20, 2003," Wistow, Mandell and Decof say in a petition presented to Gibney.
Wistow said fire experts were "surprised at the wealth of material that remains at the site that needs to be preserved and examined further."
He told Gibney that any criminal defendants in the case won't be financially able "to respond to the tremendous, tremendous damages" that could flow from the civil cases, so "there's a real reason to expend a great deal of time, effort and money to explore potential liability" of as-yet-unnamed [civil] defendants."
The victims' lawyers say the ruins of the nightclub will be sifted using trowels and screens. Cranes will be used when needed to move large pieces of debris. Items will be photographed in place and tagged with a brief description of the item and the location where it was found. Organic items will be air-dried in ventilated containers.
An evidence log will be maintained of all items tagged and removed to the depository and all interested lawyers will have access to the evidence and share in the cost of collecting and storing it. Three experts hired by Decof, Wistow, and Mandell, and one hired by as-yet-undisclosed defendants, would actually do the tagging and collecting of the evidence, with input from experts hired by other lawyers representing victims.
Mandell predicted that the tagging and removal process during the next few weeks will cost more than $100,000.
Marc DeSisto, who is representing the town, said the victims' lawyers have told him they expect it to take about 14 days to remove all the evidence they want -- by working weekdays and weekends. Criminal investigators have already carted away everything they need for their investigation. For now, Decof, Mandell and Wistow are sharing the $840 per day cost of securing the site.
More than 60 lawyers, most of them from Rhode Island, were in Gibney's courtroom yesterday for the hearing regarding the site inspections. Among the many who simply observed were Thomas Angelone, who represents American Foam Corp. in Johnston, which sold 540 feet of flammable polyurethane foam to Michael and Jeffrey Derderian, the owners of The Station, as soundproofing material; and Anthony DeMarco, who has been retained by the Derderians' insurance carrier to represent them in the many civil suits expected to be filed as a result of the fire. Also present were Deputy Atty. Gen. Gerald J. Coyne, whose office is conducting the criminal investigation into the fire, and Thomas Briody, who represents Daniel Biechele, the tour manager for Great White who, according to a police affidavit, set up the pyrotechnics that started the fire.
One thing that may slow the pretrial discovery process, which is under way, was the announcement by DeSisto, the lawyer for the town of West Warwick's insurer, the Rhode Island Interlocal Risk Management Trust, that the town plans to have all of the lawsuits filed against it moved to the U.S. District Court under a new federal law that makes transfer of such suits easier. The law covers lawsuits that stem from "accidents" that cause at least 75 deaths. The federal court could decline to take jurisdiction and send the case back to state court.
Several lawyers predicted after yesterday's court hearing that if any cases are transferred to the federal court, all of the civil lawsuits will end up there.
Wistow estimated after court yesterday that the costs to prepare the civil cases for trial will be astronomical -- $1 million for expert witness fees alone; $1 million for depositions (sworn statements taken from parties in preparation for trial) and $1 million for any trial, which he said would last for many months.
Gibney plans to reconvene with lawyers next Friday at 9:30 a.m. to address more matters relating to the civil litigation.
