Extra: The Station Fire

Foam companies offer $30 million in Station case

08:17 AM EDT on Tuesday, May 13, 2008

By Tracy Breton

Journal Staff Writer

PROVIDENCE — Several polyurethane foam manufacturers have tentatively agreed to pay $30 million to the victims of The Station nightclub fire in settlement of federal civil suits pending against them in connection with the 2003 West Warwick blaze that killed 100 people and injured more than 200 others.

The new settlement offers were filed yesterday in U.S. District Court in Providence. Altogether, this brings the pool of money offered to victims so far to $102.815 million. But the settlement offers are only tentative at this point. The fire victims and their families won’t be getting any of the money anytime soon.

The foam companies that have offered the new settlements are: Foamex International and General Foam — a company it acquired in 2001 which lawyers claimed may have manufactured the highly flammable foam that caught fire in The Station; Leggett & Platt; FFNC Inc. (also known as Future Foam of North Carolina); and Wm. T. Burnett & Co. Inc. –– three other foam manufacturers also sued by the victims.

The victims’ lawyers have been conducting tests on the polyurethane foam recovered from the ruins of The Station nightclub in an attempt to determine which company manufactured the foam. They sued several companies they believed could have manufactured it.

The settlement agreement as worded does not disclose which of these companies actually supplied the foam that The Station’s owners, Jeffrey and Michael Derderian, installed on the walls and ceiling of their club. All of the companies offering yesterday’s settlement were sued as potential suppliers by the victims.

Providence lawyer Thomas W. Lyons, local counsel for Leggett & Platt, said his client would have no comment at this time on the tentative settlement. Lawyers for the other foam companies did not respond to requests for comment.

Mark Mandell, a lawyer representing many of the fire victims, said “the settlement documents speak for themselves” and that the only comment the plaintiffs’ lawyers would be making would be in open court.

The Derderians bought the soundproofing foam they installed in their club from American Foam in Johnston, another defendant in the civil suits pending in federal court here.

The fire erupted in The Station the night of Feb. 20, 2003, when Daniel M. Biechele, the manager for the rock band Great White, set off pyrotechnics at the beginning of the show. Sparks from the fireworks ignited the highly flammable foam that was used as soundproofingThe fire spread so quickly that many of the patrons could not escape.

Even though it’s not specified which manufacturer(s) made The Station foam, the victims’ lawsuits allege that each of the companies involved in yesterday’s settlement offer manufactured, distributed and/or sold “defective and unreasonably dangerous” foam that led to injuries and deaths of the nightclub’s patrons. All of them are alleged to have sold polyurethane foam to American Foam during the time period in question.

The suits allege that the foam manufacturers “owed a duty of care to all purchasers and/or ultimate users and/or recipients of the foam product, including plaintiffs, in the design, manufacture, testing, inspecting, producing, selling or distributing of the foam product” but failed to use such care. The victims claim that the foam manufacturers failed to adequately test and research “the effects” of the foam they manufactured; and failed to warn and educate potential and actual users of the foam’s potential hazards.

The suits allege that the use and misuse of such foam “is a foreseeable hazard” and that polyurethane foam “used as an interior finish has been the primary fuel load in fatal fires in places of public assembly for decades.” The public, the lawsuits say, is not aware of this and should have been warned.

“It was manufactured and sold untreated without any flame-retardant chemicals, ignited too easily, burned too easily once ignited and produced unreasonably dangerous toxic smoke and gases,” the lawsuits allege.

Foamex International, a publicly traded company on the OTC exchange, was sued because it took over certain assets of General Foam’s business in 2001.

Leggett & Platt is a Fortune 500 company that is traded on the New York Stock Exchange.

The lawsuits allege that Leggett & Platt, doing business as Crest-Hood Foam Company and Crest Hood, manufactured highly flammable and dangerous foam that was installed at the Station. The same allegations were leveled against FFNC, a Nebraska corporation, and Wm. T. Burnett & Co. Inc., a Maryland corporation previously known as Montevideo Inc.

The $30-million settlement offer by the foam manufacturers are contingent on the plaintiffs and U.S. District Senior Judge Ronald R. Lagueux agreeing to them. The judge must make a determination that each settlement offer is being made in good faith before any of the money is disbursed.

There’s another condition: Before any money is put into the pot, the lawyers representing those who want to settle want some assurance that if they pay now, they won’t be on the hook for more money later if the case goes to trial and other defendants who don’t settle are found liable and then try to come after them for part of the verdict.

A court-appointed special master is working on a matrix that would be used to determine how much each plaintiff would receive. That also must be approved by the court. Not every plaintiff will share equally in whatever proceeds are given out. The grid being devised by Duke University law Prof. Francis E. McGovern — who is donating his services to the fire victims — takes into account such things as severity of injury and number of dependent survivors. Those suing for money damages include those who were injured in the blaze and their family members and the families of those who perished.

tbreton@projo.com

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