Digital Extra: The Station Fire

The concern is that there won't be enough material for use by lawyers representing victims of civil suits.

01:00 AM EST on Tuesday, January 11, 2005

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- Eight lawyers representing hundreds of victims of The Station fire and their families are seeking a court order that would prevent the state from conducting any further tests of the foam taken from the ruins of the nightclub until they can be heard on the issue.

In papers filed in Superior Court last week, lawyers who have brought suit in federal court seeking damages for the fire victims say they are concerned that the tests prosecutors and criminal defense lawyers plan to perform on the foam that lined the walls and ceiling of the nightclub "will preclude plaintiffs' experts from performing the testing necessary to determine the foam's chemical composition and other characteristics necessary" for the victims to pursue their civil claims.

The victims' lawyers assert that their clients "will be irreparably harmed if the limited available foam is not handled in a manner which protects the interests of all parties."

The owners of The Station, Michael and Jeffrey Derderian, and Daniel Biechele, the former tour manager of the rock band Great White who set off fireworks that ignited the highly flammable foam at the West Warwick nightclub, are each facing 200 counts of involuntary manslaughter in connection with the Feb. 20, 2003, fire; all have pleaded not guilty.

The fire killed 100 people and more than 200 people were injured in the blaze. The fire was the fourth-deadliest nightclub fire in U.S. history. At least 440 people were inside the club when the fire broke out.

While only three people have been criminally charged, there are 47 defendants who have been sued thus far in federal court by civil lawyers representing the victims and their families. Since the scope of the civil litigation is so much broader, a more detailed picture of what happened the night of the fire and its contributing factors will likely emerge as a result of the pretrial investigation undertaken by the civil lawyers.

The defendants in the civil arena include foam manufacturers, the State of Rhode Island -- which is prosecuting the criminal case -- and officials for the Town of West Warwick. State and local governmental officials are being sued in connection with their roles in overcrowding at the nightclub and inspecting the club for fire safety.

Prosecutors, as part of their preparation of the criminal case, have already performed some tests on the polyurethane packing foam that was installed at the nightclub as soundproofing. But they recently informed the civil lawyers that they plan to conduct further tests that will consume 48 square feet of the approximately 71 square feet of foam remaining in the state's possession.

No date has been set for the upcoming testing. Dyana Koelsch, spokeswoman for the state court system, said yesterday that prosecutors and the lawyers representing Biechele and the Derderians in the criminal case have been unable to agree as to who will conduct the additional tests or what kind of tests to do.

Another pretrial conference in the criminal case is scheduled in the chambers of Superior Court Judge Franics J. Darigan Jr. on Jan. 21.

Lawyers for the fire victims assert in court papers that the foam "was a major contributor to the extremely rapid spread of the fire" and that the state and the Town of West Warwick should be prevented from "dissipating, destroying, testing or otherwise disposing of" any more of it until the civil lawyers have an opportunity to be heard regarding what protocols will be followed for the testing, what the testing methods will be and how much of the foam will be burned.

The civil lawyers say they are seeking court intervention in this matter because they have been unable to intervene in the criminal case presently pending before Darigan. They assert that "the interests of the parties in the civil proceeding in preserving and protecting the foam so that an adequate amount will be available for inspection and testing are clearly adverse" to the interests of the parties in the criminal case.

The civil lawyers are asking the court to issue a declaratory judgment that would allow them to present arguments and perhaps expert testimony, at a hearing, before any further testing of the foam is done.