Digital Extra: The Station Fire

Prosecutors relent on their earlier stipulation that no soundproofing foam from The Station be destroyed by lawyers for the fire's victims.

01:00 AM EDT on Tuesday, July 19, 2005

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- Lawyers representing the victims of The Station nightclub fire will be allowed to go forward with destructive testing on a small amount of the soundproofing foam that was taken from the club after the deadly fire.

State prosecutors have retracted a condition that they tried to set last week that would have barred the victims' lawyers from destroying any foam seized from the club after the Feb. 20, 2003, fire.

According to a letter sent Friday from Superior Court Judge Francis J. Darigan Jr. to U.S. Magistrate Judge David L. Martin, prosecutors erred in trying to set this condition on the foam's release.

"This is simply a misunderstanding by the state of our intention in this matter," Darigan wrote. "The foam to be transferred to the federal court may be used in any manner, for any purpose, under your direction," Darigan told Martin.

Darigan said in his letter that Assistant Attorney General Randall White "had previously verified with the defense counsel in the criminal case in Superior Court" that the civil lawyers could go ahead with destructive testing on the foam. "I hope this alleviates any misunderstanding regarding this important issue," he wrote.

Asked last night why prosecutors had tried to renege on an agreement to give the civil lawyers foam for destructive testing, Michael J. Healey, spokesman for Attorney General Patrick C. Lynch, said, "We made a mistake and we stand corrected. We're glad to have the court's guidance because this is a long and complicated case."

The retraction by the attorney general's office came after a contentious hearing last Thursday before Martin in U.S. District Court during which a lawyer representing many of the victims read aloud portions of a transcript from a May 20 Superior Court hearing in which Darigan announced that the prosecutors had agreed to release to the civil lawyers one square foot from each of four remaining pieces of polyurethane foam found in the charred ruins of the nightclub. Darigan said in his announcement from the bench that he knew the civil lawyers wanted to do both "invasive and noninvasive" testing of the foam.

But last Wednesday evening, White and two other prosecutors, William Ferland and Christopher Bush, said in a letter delivered to Martin that they were prepared to release some of the foam to him for distribution to the civil lawyers but only on the condition that none of it be destroyed in testing. "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," the letter read.

Now that the prosecutors have agreed to remove their requested restriction, the victims' lawyers hope that the foam will be transferred to them without further delay so their experts can test it in an attempt to discover who manufactured it. The statute of limitations for adding more defendants to the civil suits will expire in seven months.

The civil suits seek monetary damages for the fire victims and their families. One hundred people died in the fire and more than 200 others were injured, many seriously.

Three people have been indicted in connection with the blaze and await trial -- each on 200 counts of involuntary manslaughter. The criminal cases are before Darigan. Those charged are the owners of The Station, Jeffrey A. and Michael A. Derderian; and Daniel M. Biechele, the former tour manager of the rock band Great White, who set off fireworks without a permit inside the nightclub on the night of the fire.

Prosecutors assert that the Derderians were criminally negligent when they decided to install the highly flammable polyurethane foam as soundproofing, then allowed bands to use pyrotechnics inside the club, in close proximity to the foam. All three defendants have pleaded not guilty. Their cases are not expected to go to trial until next year.