Killer Show: The Station Nightclub Fire (46 page)

As evidenced by the recent fire at The Station nightclub in Rhode Island,
the use of exposed foam plastics continues to be a problem
. It is difficult to assess the magnitude of this problem, but
based on my experience, I believe it is pervasive
. . . .

In my opinion, the unsafe misuse of foam plastic products in buildings
continues to be a pervasive problem
that is perpetuated by improper testing and
misrepresentation of the flammability characteristics
of these products.

The following slide was a clear head-shot of the noted fire expert who had spoken those words to the
NFPA
audience: Frederick W. Mowrer, Ph.D.

I allowed a few seconds for that slide to sink in, then moved on.

Turning to the market-share data from 1995, I explained how Pactiv had been eliminated from the possible producers, and how chemical testing of the Mikutowicz foam the previous night had shown it to be a non-cross-linked polymer — and therefore not a Sentinel product. Up went the slide showing Sealed Air’s resulting market share after Pactiv and Sentinel were eliminated from consideration: 79 percent.

The reaction of one Sealed Air attorney was explosive. “The rules were ‘no chemical testing,’ ” he sputtered. “No,” I responded. “The rule was ‘no testing of
each other’s foam’
” — and we didn’t. Sealed Air was welcome to test its own foam,” I explained, “but we now know that the Station
PE
foam wasn’t cross-linked.”

Slow burn from across the table.

Then came the data and video from the Western Fire Center testing that showed the fourfold difference in cumulative energy released and threefold difference in carbon monoxide production of the
PU
/
PE
sandwich over the
PU
foam alone.

Finally, we wrapped up the presentation with a sampling of what a jury would likely experience when considering evidence of the pain-and-suffering endured by those killed in the fire. I ran the Butler video, with Matthew Pickett’s chilling sound recording from inside the club time-synched to it. When the lights came up, no one spoke for a full minute. Defense counsel then repaired to a separate conference room — pointedly leaving their expert, Dr. Mowrer, behind.

The same group reconvened two weeks later to hear Sealed Air’s rebuttal presentation and to see if the two sides could agree on a settlement. They finally did. Twenty-five million dollars. The last defendant had settled, bringing the total of all settlements to $176 million.

During the course of our research into the contribution of
PE
foam to the ferocity of the Station fire, I came to learn a remarkable irony about the
PU
/
PE
foam sandwich that had been applied to the walls of The Station: if the
Julian
PE
foam alone had been showered with sparks from Great White’s gerbs, it would not have caught fire, due to its closed-cell structure, smooth surface, and high density. But glue a piece of the Derderians’ egg-crate
PU
foam on top of it, and the open cells, convolutions, and low density of the
PU
foam make it ideal to catch sparks, pyrolize, and burst into flame — then transfer its energy to the
PE
foam beneath it.

As it turns out, egg-crate
PU
foam is the
perfect kindling
for
PE
foam blocks. Without it, the
PE
foam would not have burned. But with
PU
foam glued on top of
PE
foam, it was preordained that The Station’s walls would burn like the fires of hell.

CHAPTER 28

DIVINING THE INCALCULABLE

ON DECEMBER
27, 2007, a few months after the first civil defendant agreed to a settlement, Duke University law professor Francis E. McGovern met with an apprehensive group of thirty Station fire victims and families in an unused classroom of the Community College of Rhode Island. He wore a neatly pressed blue blazer, with his thinning, surprisingly long hair curling over its collar. Most of those present had never set foot in a college classroom, much less met a law professor. Bundled against the winter cold in sweatshirts and ball caps, they warily watched the man whose work would probably affect them for the rest of their lives. As this unassuming, bespectacled gentleman moved from table to table, working the room with his soft southern drawl, McGovern met the gaze and shook the hand (or what was left of victims’ burned hands) of each person, briefly introducing himself.

“Don’t worry. I’m not running for office,” he assured them. “With a name like McGovern, you wouldn’t, either.”

Thus began the first of twenty-four such meetings held by Professor McGovern, part of a yearlong process that would eventually solve one of the knottiest problems arising from the Station tragedy: how to equitably distribute millions of dollars in settlement monies among hundreds of victim families.

From the moment the first civil defendant struck a settlement in principle with plaintiffs’ counsel, it was clear that any defendant who wished to settle would only settle with
all
plaintiffs in
all
of the consolidated cases. Piecemeal settlements with only some plaintiffs would be unworkable for several reasons, the first of which was that settling defendants wanted to buy their peace once and for all, and the second, that the pool of settlement funds would never be enough to fully compensate all victims for their losses. If a race to trial and judgment by each plaintiff were to be avoided, some
mechanism would have to be developed to divide whatever settlement monies were amassed.

Lawyers are prohibited by ethical rules from settling claims of multiple clients for an aggregate sum, because of the inherent conflict of interest when they allocate the settlement among their clients. Such a conflict would arise if a lawyer were to represent two injured automobile passengers suing their negligent driver. The lawyer cannot accept an aggregate settlement from the driver and then divide it between his clients, lest he favor one over the other. Only with each of his clients’ informed consent, after full disclosure of the other’s injuries and settlement share, may such a settlement be ethically struck.

While this rule is sometimes honored in the breach, as in asbestos litigation (where plaintiffs’ firms have been known to settle multiple cases wholesale and then conduct an ethically dubious parceling of the money among their multiple clients), the Station fire cases would require an objective allocation plan, developed by an officer of the court, in order to effect a global settlement. Even more critically,
every single plaintiff
would have to agree to the distribution plan, because no defendant was willing to settle with less than all plaintiffs. Since many Station fire victims understandably regarded their particular injuries as worse than anyone else’s (and since they well knew that the total pool of money would be inadequate to fully compensate all), unanimous approval of any plan appeared highly unlikely.

Creation of an objective settlement distribution plan (and convincing all victims of its fairness) would require a “special master.” Courts have the power to appoint individuals with special experience or training to be special masters. Acting as neutral officers of the court, special masters can examine the facts of a complex case and make recommendations to the court. Special masters may be accountants, scientists, or professors, depending upon the particular needs of a case. What was needed in the Station fire litigation was an individual experienced in developing distribution plans for mass tort settlements. The special master eventually appointed by Judge Lagueux was Professor McGovern. His résumé contained, to put it mildly, some relevant work experience.

McGovern had previously served as a court-appointed special master, or “neutral,” in over fifty cases. His experience as a special master in products liability mass torts alone encompassed the fields of asbestos, silicone breast implants, intrauterine devices, and prescription drugs. McGovern even worked with the United Nations Compensation Commission to help distribute reparations for the Persian Gulf War.

Such special master assignments can often be quite lucrative, as in securities fraud settlements. However, at the time Professor McGovern was considering the job, the combined settlements totaled only $13 million. McGovern took one look at the demographics of the Station fire victims, and, considering the modest pool of settlement money, offered to act as special master, charging only his out-of-pocket expenses. (Another candidate for the job asked to be paid $250,000 for every three months he worked on developing and implementing a distribution plan.) While McGovern may not have chosen the word, his commitment to develop a plan without compensation represented a
mitzvah
of the first order (especially as contrasted with the
chutzpah
of the other candidate).

McGovern instructed the plaintiffs’ attorneys at the outset that, ideally, any allocation methodology for a mass tort settlement should be developed “from the bottom up” — that is, from victims’ input — early in the settlement process, long before it is known what the total fund will be. “That is the only way that victims will embrace a plan,” McGovern explained. The purpose of meeting with every family was to build consensus in this way — early on, from the ground up.

McGovern could have held one or two huge “informational meetings” with all the victims together, in a hotel ballroom. It certainly would have been easier on him. But he insisted, instead, on holding twenty-four separate sessions with twenty to thirty attendees each, so that he could meet with, and hear from, anyone who wished to speak. It was important, too, that the setting be spartan — an empty classroom donated by the state, rather than a posh (and seemingly wasteful) hotel conference room. The victims had to know that they played a vital part in an economical, and accessible, process.

Before each day of family meetings, McGovern fortified himself by visiting the site of the Station fire, where one hundred makeshift memorials had been erected. Over the two months of wrenching family meetings, he never lost sight of his work’s purpose.

The meetings were part lecture, part question-and-answer. Many of the attendees challenged the legal assumptions underlying an allocation plan. Yet McGovern patiently and gently bridged the social and educational gulf between himself and his audience, explaining the two competing objectives that must be served in any mass tort allocation plan.

Those two objectives are efficiency and fairness. The first, efficiency, is mandated because the costs associated with determining and distributing settlement monies cannot be permitted to consume the limited funds available.
The second, fairness, is an absolute prerequisite to victim acceptance of any plan.

At one end of the spectrum, suggested McGovern, might be an allocation plan that simply took the total of monies available and divided it by the number of victims, giving each the same award. That would be very efficient, but not very fair. At the other end of the spectrum, he noted, would be hundreds of individual jury trials for every victim (and their derivative claimants), by the end of which there would be no money left for distribution. The latter would be fair, but unworkably inefficient.

McGovern proceeded to educate the Station families about different types of distribution plans used in the past to better serve both objectives. In the Dalkon Shield intrauterine device litigation, for example, an injury “grid” was developed, whereby particular injuries were awarded a fixed dollar amount. The grid box into which a plaintiff fell determined the amount of her settlement. Similarly, in asbestos settlements, injuries fell into fairly predictable groups: mesothelioma, lung cancer, asbestosis. However, there, a system was established whereby a particular injury was awarded “points” in an attempt to relate its severity to other injuries. Additional points were added to reflect a victim’s relatively young age, or the number/age of his dependents.