Killer Show: The Station Nightclub Fire (40 page)

The tone was set early on. Judge Lagueux invited counsel in all the consolidated cases to a conference held on October 26, 2004, in the massive, wood-paneled Jury Assembly Room of the federal courthouse in Providence. There, he gave a preview of how he saw the cases playing out. Plaintiffs’ counsel were as dejected as defense counsel were buoyed when they heard Judge Lagueux announce, “Discovery is not going forward in this case until I dispose of [the many motions to dismiss]. You’ll have time to work this out.
Maybe some of you won’t be in the case
.”

“Hopefully, not
too
many of us,” mused the sixty or so defense attorneys present. Their cumulative billing rate in the room was about two hundred dollars.

Per minute.

The defense attorney for Clear Channel Broadcasting was actually heard by the court stenographer to quip, “I like the way you’re working so far.”

It appeared that, by a combination of removal to federal court under the new jurisdictional statute, and simple luck of the judicial draw, the Station fire victims, already unfortunate, had been dealt another weak, and possibly losing, hand.

Even without the case’s removal to federal court, we on the
PSC
were having a hard enough time. Plaintiffs’ attorneys are natural competitors for the most lucrative cases. We’re used to working alone, making all the strategic decisions on a case, pouring all necessary resources into it and either reaping its reward (and its attendant publicity), or suffering its defeat, alone. As a result, plaintiffs’ lawyers are constitutionally ill-suited to litigation by committee.

There are good reasons why farmers don’t use thoroughbred racehorses for wagon teams. High-strung, pricy, and temperamental, they’d all want to pull their own way and have others clean up after them. It’s the same way with plaintiffs’ attorneys trying to work together on the same case — only with more ego and less horse sense.

At initial hearings before state judges in the Station case, one of our group would routinely arrive early, so that he could grab the “first chair” at counsel
table and give the impression he was sole lead counsel. Others from the committee would rush to feed sound bites to reporters after each proceeding.

On May 27, 2003, a state Superior Court judge, Alice Gibney, appointed two attorneys as “Co-Chairs of the Plaintiffs’ Steering Committee.” She appointed a third attorney “Vice-Chair.” Among the three firms, 179 fire victims were represented. After weeks of counterproductive competition between the two co-chairs, they struck an agreement that would prove critical to the successful functioning of the committee over the next seven years: both would jointly represent each other’s clients, dividing all contingent fees evenly between them; both would eschew public comment on the case for its duration; and neither would seek appointment to any representative position regarding the plaintiffs’ cases without permission of the other. For the most part, the agreement would be honored.

Struggle for control of the litigation was not unique to the plaintiffs’ side of the aisle. Hourly billing defense firms jockeyed for the highest profile and, hence, the right to ring up stratospheric fees in what would undoubtedly be protracted litigation (at least if they had anything to say about it). Their posturing sometimes bordered on the comical. At the first federal court conference in the consolidated cases, one attorney took the microphone and blustered, “I also represent Foamex and General Foam Corporation. I’m slightly different than everyone else here in that I have had twenty-seven years of experience in these mass fire torts, and I would pick up on what the gentleman to my left has to say . . .”

Major corporate defendants had in-house counsel, national litigation counsel, and local counsel representing them simultaneously. The case was seen by some as a defense gravy-train, with firms racking up billable hours by sending associates to observe court proceedings in which their clients had only a theoretical interest, at best.

Such practices crystallized an inherent tension between contingent-fee plaintiffs’ lawyers and hourly billing defense counsel: plaintiffs’ attorneys want to move cases to completion because they do not get paid without a resolution in their clients’ favor; defense firms, particularly those representing huge defendants whom they may never again represent, have an institutional (economic) bias toward delay and obstruction. Justice delayed may, as the saying goes, be justice denied, but in defense circles it means billable hours. And the Station civil litigation would set new records for those.

In addition to the difference between how defense lawyers and plaintiffs’ lawyers get paid (if, indeed, the latter ever do), there is, quite often, a difference in how the groups view themselves. The fact that defense lawyers
get paid, win or lose, sometimes gives rise to an attitude among them that attorneys representing insurance or corporate giants deserve more respect than their contingent-fee brethren. (Shameless advertising by “personal injury attorneys” does little to dispel this notion.) But such stratification of the bar based on client set is not always reality based.

True, successful plaintiffs’ attorneys are not usually Harvard or Yale educated. Someone named Phelps Worthington III might not feel very comfortable practicing plaintiffs’ product or medical liability law. But what the plaintiffs’ bar may lack in breeding, it makes up for, at its highest levels, in intellectual rigor and a risk-taking hunger born of ethnicity and inferiority complexes — often a potent combination.

The expiration of the statute of limitations in February 2006 was crunch time for plaintiffs’ counsel in the Station cases. Inside the evidence warehouse, their experts had literally reconstructed the entire west end of the Station nightclub from materials salvaged from the fire scene. They had tested foam remnants, studied hundreds of photographs, and analyzed the Butler video, frame by frame. After completing document discovery and depositions of eighty-five witnesses in an attempt to identify potential additional defendants, the
PSC
finalized its Third Amended Master Complaint — the last chance to name any defendant whose conduct might have contributed to the deaths and injuries in the fire. That document, 224 pages in length, set forth 133 legal bases for claims by 467 plaintiffs (including relatives of the injured and killed) against some 87 individual and corporate defendants. The Third Amended Master Complaint — a culmination of three years’ work by the eight law firms constituting the Plaintiffs’ Steering Committee — would thereafter become the “Bible” of the litigation.

It was immediately adopted by the Free Riders.

CHAPTER 26

MAKING THE TOUGH CASES

“
WHY DON’T YOU SUE
the Dixie Cup manufacturer? I’ll bet there were some in the ladies’ room, and they burned, too,” suggested one denizen of the radio call-in shows. These and other criticisms were leveled at the plaintiffs’ attorneys as we struggled to identify all possible defendants before the statute of limitations expired. In so doing, we cast a wider net than some lay observers would have preferred; however, when the dust finally settled, our inclusive approach would prove to have well served the victims of the Station fire.

It is a bedrock concept of tort law that more than one defendant may be liable for a plaintiff ’s injuries. A defendant needn’t have been the only “tortfeasor”; indeed, he can be one of several “joint tortfeasors,” if his negligence had combined with that of others to bring about the plaintiff ’s injuries.

And, in most jurisdictions, the negligence of any one tortfeasor need not even have been the
greatest
contributor to the plaintiff ’s injuries for that defendant to be liable. It is enough that his negligence was a foreseeable, or “proximate,” cause of the plaintiff ’s injuries, along with the negligence of others. If a joint tortfeasor is found to have been as little as 1 percent responsible for the plaintiff ’s injuries, then the plaintiff can recover his entire damages against that defendant. That defendant, then, has a claim for what is called “contribution” against other defendants who he feels were also responsible. A claim for contribution effectively says, “If the court finds that I’m liable to the plaintiff, then you’re liable to me, because you were negligent, too.” This is called “joint and several liability,” and it is the cornerstone of mass tort jurisprudence.

What joint and several liability means, in practicality, is that if a plaintiff can prove that a deep-pocketed defendant was even
partially
responsible for catastrophic injuries, he may collect
all
his damages from that defendant, and
it is then up to that defendant to seek contribution from the other (perhaps less well-heeled) defendants. The public policy behind this result is straightforward:
if any person is to bear the risk that one of several joint tortfeasors is judgment-proof (because it has no assets), that person should be a negligent defendant, rather than a blameless plaintiff
.

There could be no fairer application of the doctrine than in the case of the Station fire. Whatever one might think of joint and several liability, no patrons of The Station deserved their fate on February 20, 2003. If anyone were to bear the risk that the band or club was judgment-proof, it should be other culpable defendants.

But culpability under cutting-edge tort law is not a simple thing, especially when it comes to products liability. When is a product defective? Did it bear inadequate warnings? What uses of it are sufficiently foreseeable to subject its manufacturer to liability? What about intervening criminal acts (like setting off unlicensed pyrotechnics)? Might they not break the chain of causation?

These and myriad other questions would be addressed as we engaged over the years with our defense counterparts in the stately minuet of pleadings, responses, motions to dismiss, and motions for summary judgment. Legal theories would be advanced, and tested. Some would fall by the wayside. Others would give defendants enough pause to decide that settlement just might be the better part of valor.

Of the eighty-seven defendants named in the
PSC
’
S
Third Amended Master Complaint, several were obvious, like the Derderians and the band. Others were less so.

One of the less obvious defendant groups consisted of
WPRI
videographer Brian Butler and his employer corporation. The theory of liability against Butler was that, according to eyewitnesses, he began filming while standing a few rows back from the stage and then, when the fire began, removed himself to a position of relative safety near the door where he held his ground for a critical eight to ten seconds, impeding others’ exit while he “got the shot.” Erin Pucino claimed to be an eyewitness to Butler’s conduct. According to her, Butler stood near the corridor to the main door, looking into his camera and shooting toward the stage while she and others struggled to get around him. Another patron, Frederick Vallente, separately told police that “people were screaming at Brian Butler to get out of the way because he was impeding their exit while he filmed.”

Liability of Butler’s employer corporation was based upon the legal doctrine of
respondeat superior
(literally, “Let the master answer”). The doctrine provides that a master is “vicariously responsible” for the negligence of his
servant during activities performed within the scope of his employment. This rule of vicarious liability would be applied to several other employer-defendants who acted through individual employees to contribute to the tragedy of the fire.

Butler could not have disagreed more strongly with Pucino’s and Vallente’s allegations. According to him, “after I turned from the stage, I did not look into the camera view finder again.” Clearly, the truth did not just lie “somewhere in between” Butler’s account and those of Pucino and Vallente. Someone was, to put it most charitably, “mistaken.”

Another deep-pocketed group of defendants found itself in the case through the acts or omissions of an unlikely employee. Radio station
WHJY
had promoted the Great White concert at The Station. Its employee, Michael Gonsalves, aka “Dr. Metal,” acted as master of ceremonies, standing onstage as Dan Biechele set up Great White’s pyrotechnics. Our complaint alleged that Gonsalves could and should have noticed that the illegal pyro was being set up, and that he sufficiently controlled the stage at the time to stop the concert before introducing Great White. We also knew that Gonsalves’s weekly salary as a radio
DJ
was directly paid by media giant Clear Channel Communications, the parent company of
WHJY
, making Clear Channel his actual employer.

American Foam Corporation, the Johnston, Rhode Island, corporation that employed club neighbor Barry Warner and sold the Derderians the polyurethane foam, had precious little wiggle-room as a defendant. It knowingly sold highly flammable packing foam as “sound foam” to be installed on the walls of a place of public assembly. For reasons unknown, Warner himself alleged, in an attempted “anonymous” fax to the police after the fire, that American Foam’s president had fostered an atmosphere in which foam’s fire risks were downplayed to its customers. Clearly, Warner had more than a little animus toward his ex-employer. Under the circumstances, Clarence Darrow would have had a tough time defending American Foam.