Digital Extra: The Station Fire

Prosecutors, however, say they only agreed to make the soundproofing foam available on the condition that none of it be destroyed in testing.

01:00 AM EDT on Friday, July 15, 2005

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- Lawyers representing victims of the Station nightclub fire were in U.S. District Court yesterday, complaining that state prosecutors were attempting to renege on an agreement they had made to allow them to conduct destructive testing on a small amount of the soundproofing foam that was taken from the club after the deadly fire.

Lawyers representing 100 people who died in the Feb. 20, 2003, nightclub fire and about 250 others who were injured in the blaze say they need to have experts conduct invasive tests on a "miniscule" amount of the polyurethane foam in an effort to pinpoint what company manufactured it.

The statute of limitations for adding defendants to the civil lawsuits filed by the victims' families will toll in seven months. After that, the victims' lawyers will not be able to sue anyone else for monetary damages.

The highly flammable foam that covered the walls and ceiling of The Station is a centerpiece of the civil and criminal cases stemming from the nightclub fire.

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 facing the same charges as the Derderians because he set off fireworks inside The Station without a permit on the night of the fire.

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 who manufactured the foam installed inside the West Warwick nightclub.

Yesterday, about 24 lawyers representing victims and defendants in the civil cases were in the courtroom of U.S. Magistrate Judge David L. Martin, complaining about a letter that they received the previous evening from three prosecutors in the office of Attorney General Patrick C. Lynch.

On May 20, Superior Court Judge Francis J. Darigan announced from the bench that prosecutors had agreed to release to the civil lawyers 1 square foot from each of the four remaining pieces of polyurethane foam found in the charred ruins of the nightclub, so that the lawyers could have it tested. Darigan said in his announcement that he knew the civil lawyers wanted to do both "invasive and noninvasive" testing.

But in Wednesday's letter to the civil lawyers, the prosecutors said that while they were prepared to deliver the pieces of foam to the federal court for distribution by Martin, they only agreed to make it available on the condition that none of it be destroyed in testing.

"We are aware that the civil plaintiffs have asked to perform certain tests on this incident foam that may destroy or alter that foam," prosecutors William Ferland, Randall White and Christopher Bush say in their letter, which was addressed to Martin and received by him at 4:30 p.m. Wednesday.

"Please be advised," the letter reads, "that we believe that the parties to the criminal cases agreed to transfer the foam with the understanding that only non-destructive testing would be performed. We believe that this qualification/limitation is essential and derives from the fact that there are several motions pending in the criminal cases for permission to conduct destructive testing of the incident foam. We would therefore respectfully request that you not authorize or permit any destructive testing of the foam that the state ultimately transfers to your custody."

Lawyer Mark Mandell, who represents many victims of the fire, told Martin yesterday that what the prosecutors are now saying flies in the face of the agreement announced by Darigan two months ago. He read from a portion of a transcript prepared from the May 20 hearing, in which Darigan says he knows the civil lawyers want to conduct destructive testing and that prosecutors had agreed to give up a small amount of the foam for that purpose.

Martin said he would confer with Darigan to clarify things before taking custody of the foam and issuing a decision on what, if any, tests the victims' lawyers can perform at this point. Martin said the letter he received from prosecutors Wednesday "is the first time the court was made aware of such a limitation" on the proposed testing of the foam by the civil lawyers.

Lawyers for the foam companies that have already been sued by the fire victims -- Leggett & Platt, General Foam and Foamex International -- told Martin that the victims' requests for the foam testing were premature and would first have to be authorized by the federal judge presiding over the civil cases, Ronald Lagueux.

Mandell and Robert Reardon, another lawyer representing the victims, assured Martin that only an "infintesimal amount" of the foam they are to receive from the prosecutors would be destroyed by their experts.

Mandell said there was 110 square feet of foam seized from The Station after the fire, and only 1 millimeter of it would be destroyed in the tests proposed by the civil lawyers.

At this point, said Mandell, "we have no information on the foam's characteristics." In order to help pinpoint who manufactured the foam that lined the ceiling and walls of The Station, tests need to be done on the foam to determine "cell structure, pigment color and density," he said.

Mandell said the testing proposed by the victims' lawyers "harms no one," because lawyers in the criminal case, as well as the parties being sued by the victims, would have access to the test results. He told Martin he was "startled" by the prosecutors' "new position" involving the proposed testing.