Digital Extra: The Station Fire

The state cannot conduct additional testing without the court's permission. The judge urges the parties to try to reach a compromise.

01:00 AM EDT on Saturday, October 8, 2005

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- Lawyers representing The Station nightclub fire victims and the manufacturers of two foam companies that have been sued by the victims asked a Superior Court judge Friday to block prosecutors from performing further tests on the foam that was used as soundproofing at the club.

The state wants to use much of the remaining foam in its possession to conduct a test that victims' lawyer Max Wistow termed unnecessary. Wistow asserted that the parties to the civil suits -- which have been given just 4 square feet of the foam -- need more of it for testing so it can be determined who manufactured it.

Judge Francis J. Darigan made no immediate decision on the issue. But for now, the state cannot proceed with further testing unless the court gives it the OK.

The judge urged the lawyers for the victims, the foam manufacturers, the attorney general's office, the nightclub owners and the former tour manager for the band who set off pyrotechnics that started the fire to try to reach a compromise regarding further tests.

If they cannot, Darigan said he would decide the matter.

Club owners Jeffrey and Michael Derderian and Daniel Biechele, former tour manager for the rock band Great White, each face 200 counts of involuntary manslaughter, and they've also been named as defendants in civil lawsuits.

In arguments that lasted for about 1 1/2 hours Friday morning, Wistow -- who told the court he was speaking for 87 of the people killed in the Feb. 20, 2003, fire and 165 of those injured in the blaze -- accused the attorney general's office of "giving us the barest amount of courtesy" in addressing the victims' concerns since the fire.

Prosecutors say they have taken "unprecedented" steps in trying to share information with the victims' lawyers. But Wistow said that wasn't so.

"One hundred lives have been snuffed out and 200 lives have been changed forever" as a result of The Station fire, he argued. "Some consideration has to be paid to that."

Wistow and lawyers representing two foam manufacturers that have been sued in connection with the fire asked Darigan to take steps to ensure that as much of the remaining foam from the club as possible be preserved.

The parties to the civil suits want to do a battery of tests to try to pinpoint what company made the highly flammable polyurethane foam that lined the walls and ceiling of The Station. Some testing by the civil lawyers is scheduled to go forward this week.

In court Friday, Wistow told Darigan that such tests were crucial because the victims' lawyers had been told that American Foam, in Johnston, can't be sure whether the foam it sold to the Derderians came from General Foam or Leggett & Platt, since it "intermixed" foam from both companies at its place of business.

Darigan said that "the court is most aware of the great tragedy visited upon all of the people in that nightclub fire," as well as their relatives and friends.

"We've tried to keep the interests of all parties in mind," he said. He said that it was his impression that the cooperation the victims' lawyer was receiving from state prosecutors was "admirable . . . but that's not for me to judge."

What is clear, he said, is that "the people most affected by this tragedy will never be satisfied," whatever the outcome of the civil and criminal cases. And he said that while he hoped the civil and criminal lawyers could work out an agreement regarding allocation of the remaining foam, the law mandates that "the criminal aspects of his case have to take priority over the civil interests."

Lawyers for the Derderians and Biechele have been given some of the nightclub foam to test, as have the civil lawyers. Friday's arguments involved 48 square feet of remaining foam found in the club after the fire that the state wants to use for a different kind of testing.

Special Assistant Attorney General Christopher Bush said after court that just 75 square feet of foam remained from the nightclub for all parties who are interested in testing it. The criminal defense lawyers want some of it for additional tests, as do the civil lawyers.

Bush told Darigan that in the spirit of cooperation, prosecutors have been sharing the results of the tests they have already conducted on the foam, and have also given the civil lawyers more than 1,300 photographs of what the nightclub looked like before and after the fire. In addition, he said, the victims' lawyers were given a viewing of the state's evidence, including all the foam remaining from the nightclub.

Darigan suggested that prosecutors check with the two labs that have submitted bids to conduct the additional test the state now wants performed to see whether the test can be done with less than 48 square feet of foam.