Digital Extra: The Station Fire

01:00 AM EDT on Tuesday, July 13, 2004

BY EDWARD FITZPATRICK and LYNN ARDITI
Journal Staff Writers

PROVIDENCE -- A judge yesterday urged lawyers to try to reach an agreement about how to protect and preserve the evidence that's being used in The Station fire criminal case so it can be used later in lawsuits.

Lawyers representing fire survivors and families of people killed in the blaze asked the judge to adopt protocols for handling evidence -- particularly the polyurethane foam that the West Warwick nightclub had used as soundproofing.

State Superior Court Judge Francis J. Darigan Jr. declined to rule on that request yesterday. But he offered assurances that all evidence in the criminal case will be handled properly and that no evidence will be "dissipated." And he said that state prosecutors and defense lawyers will discuss possible protocols with the lawyers pursuing civil action.

If no agreement is possible, Darigan said he will take up the issue again on Sept 24. But, he said, "I'm hoping, through the reasonable approach I've indicated, there may be some common ground regarding the handling of the tangible evidence."

One hundred people died and more than 200 were injured after the rock band Great White began its Feb. 20, 2003, show with pyrotechnics, which ignited soundproofing around the stage inside The Station nightclub. Club owners Jeffrey A. and Michael A. Derderian and former Great White tour manager Daniel M. Biechele each face 200 counts of involuntary manslaughter, and each has pleaded not guilty.

Darigan's approach yesterday satisfied lawyers who head a steering committee representing 132 fire survivors and the families of 77 people killed in the blaze.

"Basically, this is what we wanted -- the opportunity to sit down and discuss," lawyer Max Wistow said. "We don't anticipate any problems. At least we hope there won't be any problems."

"We believe they would have done the right thing anyway," lawyer Mark S. Mandell said. "This just ensures it."

Mandell and Wistow said the state has four sheets of The Station's polyurethane foam -- each about 5 feet long and 2 1/2 feet wide -- and they want to ensure it isn't used up in testing done for the criminal case. One way to analyze the foam's chemical makeup is to burn it, they said.

"We don't want it tested to its extinction," Mandell said. "And we want to be present during the testing to make sure appropriate scientific protocols are followed."

Mandell said the steering committee hopes to file civil complaints in state court within two to three weeks, and the case will then be removed to federal court.

In a memorandum, Wistow, Mandell and other lawyers argued that, "The establishment of protocols is essential since the indicted defendants, as well as the state, will be defendants in any civil actions filed by the victims.

"Unless representatives of the victims are allowed to participate in discussions regarding the testing of evidence, the actual testing of evidence, and are included in any exchange of evidence, then the state and the indicted defendants will have an unfair advantage in any civil proceedings since they will have exclusive access to these materials," the memo stated. "The indicted defendants would gain this advantage simply because of their alleged criminal wrongdoing."

Outside the courthouse, Biechele's lawyer, Thomas G. Briody, said, "My client would gladly surrender any advantage if the state would drop the charges and focus on compensating the people who were injured through this terrible accident. But that's not going to happen, so we have to preserve the integrity of the criminal proceedings, and we have to ensure that all parties to the criminal proceedings have access to the evidence."

Briody said he has no problem with meeting the lawyers planning to file civil suits.

State spokesman Michael J. Healey said, "Attorney General [Patrick C.] Lynch thinks this is good news -- that all sides come together and work on an agreeable plan."

Lawyers representing Foamex International Inc. and General Foam Corp. filed an objection to the steering committee's motion, saying, "It would be completely inconsistent with the federal court's exercise of jurisdiction over the civil actions arising out of The Station fire to allow the moving parties to conduct what is essentially discovery for the civil actions in the context of these criminal proceedings."

Wistow said, "I find it hard to believe that the foam companies are interested in the constitutional purity of any proceeding. They see it to their benefit that the evidence not be available to the plaintiffs. They know how flammable it is. They know its chemical composition."

In addition to the civil and criminal cases, the Derderians also are facing a $1.06-million penalty leveled by the state Department of Labor and Training for the nightclub's failure to carry workers' compensation insurance.

The coverage, which is required by state law, pays medical bills and benefits to injured workers and their families. It also pays benefits to the dependents of workers killed on the job.

Among the 100 people killed in the blaze were 4 nightclub workers.

Lawyers for the Derderians have appealed the $1.06-million penalty against Derco LLC to the state Supreme Court.

Meanwhile, the Derderians' lawyers are fighting an attempt by labor officials to hold the brothers personally liable for the $1.06 million.

The Labor Department's chief legal counsel, Louis J. Vallone, the hearing officer in the insurance case, ruled in February that the state's Limited Liability Company Act shields the Derderians from liability for the $1.06 million.

But the Labor Department's lawyers have appealed their chief legal counsel's ruling.

Yesterday, state Workers' Compensation Court Judge John Rotondi met behind closed doors with lawyers for the Derderians and the Labor Department to hear arguments on whether the state can hold the Derderians personally liable for the $1.06 million.

The outcome could determine whether the state attempts to collect part or all of the $1.06 million from the Derderians -- even if their company, Derco LLC, were to declare bankruptcy.

Rotondi has scheduled a hearing on the question of personal liability for July 28 at 2 p.m.

"It's ironic the state is pressing this issue" of personal liability, Jeffrey B. Pine, the lawyer for Jeffrey Derderian, told reporters as he left the courthouse yesterday. The Derderians "wanted to do something for the families . . . to compensate them in some way," he said, but they've held off pending the resolution of the the $1.06-million penalty.

Kathleen M. Hagerty, the lawyer representing Michael Dederian, said the Derderians "would like to see any monies paid go directly to people affected [by the fire] and not to the state."