Digital Extra: The Station Fire

Tests of the highly flammable material will be central to the criminal and civil cases stemming from the nightclub fire, but it appears there will not be enough of it for everyone.

01:00 AM EDT on Tuesday, May 17, 2005

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- The Station fire criminal and civil cases were thrown into confusion yesterday when a Superior Court judge announced there would not be enough polyurethane foam for testing by all the parties who want it.

Judge Francis J. Darigan Jr. told a packed courtroom that after six months of legal wrangling, state prosecutors and lawyers for the three men charged in connection with the deaths of 100 people in the 2003 nightclub fire could not reach agreement on the parameters of the testing.

"This is a very disturbing situation for me," said Darigan, the judge presiding over the criminal case. He said he knew that the lawyers representing victims of the fire would also be distressed by the news.

Darigan said he plans to meet later this week with U.S. Magistrate Judge David L. Martin to try to figure out how to fairly allocate the limited amount of foam that remains from the basement of the charred ruins of the West Warwick nightclub. But he made it clear that "there's certainly not enough of this material available" to satisfy everyone's interest.

The highly flammable polyurethane foam that covered the walls and ceiling of The Station is a centerpiece of the civil and criminal cases stemming from the Feb. 20, 2003, fire that killed 100 people and injured more than 200 others.

Prosecutors assert that the owners of the nightclub, Michael A. and Jeffrey A. Derderian -- each of whom is charged with 200 counts of involuntary manslaughter -- were criminally negligent when they decided to install the foam as soundproofing, then allowed bands to use pyrotechnics inside the club, in close proximity to the foam.

A third defendant in the criminal case, Daniel M. Biechele, was the tour manager for the rock band Great White. He is charged because he set off fireworks inside The Station without a permit on the night of the fire.

While the criminal lawyers want to conduct tests on the foam that the Derderians bought to determine how fast it burns and the toxicity of the chemicals emitted upon ignition, the victims' lawyers have additional interests: they want to conclusively determine, before the statute of limitations expires for bringing suits for monetary damages, who manufactured the foam that was installed inside The Station. The civil lawyers have already sued a few foam manufacturers but need to pinpoint which firm produced the foam that was installed at the nightclub.

Six pieces of undamaged foam were seized after the fire from the basement of The Station. The state has already consumed some of it in testing. Darigan said yesterday that there is just 72 square feet still available for further tests.

In court yesterday, Darigan stated that in his view, the demands of the criminal lawyers should take priority over the civil lawyers' requests. He said the civil lawyers will be able to access results of tests commissioned by prosecutors.

Two months ago, Darigan announced from the bench that he believed the criminal lawyers had reached an agreement that "exemplar" foam that prosecutors bought after the fire from American Foam in Johnston was "substantially similar" to the foam seized from The Station, which had also been purchased from American Foam.

But now that the parties in the criminal case cannot agree on this, they, along with the civil lawyers, are all competing for the remaining pieces of basement foam. The civil lawyers have filed a motion asking Darigan to halt further testing of the foam in the criminal case until they get their share of it.

Darigan did not act on that motion yesterday, but did set the stage for release of some of the foam to lawyers for Biechele and the Derderian brothers. He granted a motion -- opposed by prosecutors -- to allow the defense lawyers to inform him, without disclosure to the state, what type of tests they want to perform and why they want to do the tests. He said he'll decide whether the request is appropriate -- perhaps with some help from outside experts recommended by both sides.

Prosecutors argued that the defendants do not have the right to proceed with the testing without giving them a reason for the tests, the name of the testers and their scientific background and qualifications.

But Darigan agreed with arguments made by a lawyer for Jeffrey Derderian, former Attorney General Jeffrey B. Pine, who told the court that at this point, this type of information is protected by the attorney/client privilege. If the defense plans to present its test results at trial, it would have to disclose the information to the prosecution beforehand.

It was unclear yesterday just how much foam the Derderians want to use in their tests. Thomas Briody, Biechele's lawyer, told the court he wants 5 feet of it.

In other court action yesterday, Darigan reserved ruling on a prosecution request to subpoena financial records of the Derderians and DERCO LLC, the corporate entity under which they operated The Station.

The state wants these records, Assistant Attorney General William J. Ferland argued, because the grand jury that indicted the Derderians had incomplete records relating to their finances. He said some witnesses told the grand jury that the Derderians lacked the resources to make repairs at their nightclub that would have made it a safer place. He said the grand jury also heard testimony about "the general disrepair the club had fallen into."

But Ferland said he expected to introduce evidence at trial that the Derderians had sufficient funds to bring the nightclub into compliance with building and fire codes, yet made "a conscious decision . . . not to make these remedies because of fiscal reasons." He noted that the Derderians elected to spend money on an elaborate sound system instead of fire-safety repairs.

Kathleen Hagerty, a lawyer for the Derderians, told Darigan that whether her clients had money to spend on their club "is irrelevant" to the state's manslaughter case. She called the state's subpoena request "a fishing expedition. They're asking for everything but birthday cards and Christmas gifts."

Darigan said that if he owned a nightclub, "I'd want to spend my money on a good sound system." He gave no indication when he would rule on the state's subpoena request.

The judge scheduled another hearing in the case for Friday morning. At that time, he is expected to decide whether to grant the defendants' requests to interview more grand jurors. The defense is investigating what it has argued may have been excessive absences by some grand jurors.

Tracy Breton can be reached at tbreton [at] projo.com or (401) 277-7362.