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 th
e 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.
Legal theories against manufacturers of polyurethane foam who sold it to American Foam were tougher to marshal. Plaintiffs alleged that the foam was defective because it was not flame retardant, and because the “solid gasoline” described in Jeff Derderian’s earlier news piece bore inadequate warnings. We also floated a novel theory of “product stewardship” whereby manufacturers of extremely hazardous substances should undertake to ascertain the downstream uses to which their products will be put — and exercise some control over their eventual use. Polyurethane foam’s history of contribution to the French nightclub fire, the fire on the Sigmund and the Sea Monsters set, and the Dupont Plaza fire, prior to the Station fire, was cited as a reason the manufacturers should have known, and done, much more.
The PU foam manufacturing defendants would have none of it. Their position was that whichever manufacturer sold the foam to American Foam (and no one was admitting to it) did so for ultimate “fabrication” (cutting into egg-crate-convoluted sheets) without knowing its intended end use. Also, it was sold in minivan-size foam blocks called “buns” to be cut up by American Foam, and could not, therefore, have easily borne a flammability warning on the end product.
And, anyway, try proving who actually made it. It was essentially a generic product — the “Ford Taurus” of foam, according to Barry Warner — and most of it burned up in the fire. It probably bore no unique chemical signature to distinguish one manufacturer from another. Therefore, we would not be able to prove “product identification,” critical to any product liability claim — that is, that any given defendant actually manufactured the unlabeled, generic PU foam that American Foam cut into convoluted sheets and sold to The Station.
Moreover, the possible PU foam manufacturers contended that no makers could have anticipated that their product would be exposed to fireworks. (That a substance known to suppress sound might well be exposed to any ignition source, like a lit cigarette, in a nightclub was apparently not important to the PU manufacturers.) They’d successfully avoided regulation and liability enough times in the past. The industry had agreed not to mislabel its products as “self-extinguishing” or “non-burning” anymore, since the 1974 FTC consent order, but it was still shipping millions of tons of non-fire-retardant foam (visually indistinguishable from the fire-retardant variety) without attempting to educate ultimate end users about its incendiary propensities. They were confident they’d dodge the bullet once again.
The landlord for the Station building, Triton Realty Limited Partnership, presented its own problems as a defendant. The Derderians’ lease provided that the landlord had no responsibility whatsoever for maintaining the building or keeping it in compliance with building and fire codes. It did, however, warrant to the Derderians that, at the time they took possession of the building in 2000, it met all applicable codes — which would have been impossible with Howard Julian’s foam blocks installed on the walls of the drummer’s alcove. No problem, countered Triton, through its counsel. That warranty ran only to the Derderians. For that reason, it gave rise to no duty to The Station’s patrons. And, anyway, it was expressly limited to the value of the real estate — a dubious number, in the case of 211 Cowesett Avenue. Raymond Villanova’s post-fire transfer of Triton Realty’s assets to other corporations may have looked guilty enough, but there was no certainty that the allegedly fraudulent transfers would be admissible as evidence in any trial against Triton.
The doctrine of respondeat superior would also find application in the cases against the town of West Warwick and the state of Rhode Island. Fire Marshal Denis Larocque, a salaried member of the West Warwick Fire Department, was unquestionably a town employee; however, he also proudly carried a card identifying himself as a duly appointed “Deputy State Fire Marshal.” A single person can be the simultaneous agent/servant of two masters under the law, and in this case Larocque’s faulty inspections and fanciful capacity calculations were undertaken in the service of both the town and the state.
Unfortunately, the same Rhode Island statute conferring personal immunity upon the fire marshal for acts and omissions in the “good faith performance of his duties” also would, if applicable, have immunized both of his “masters” from vicarious liability for Larocque’s negligence. We would have to somehow prove that Larocque’s failure to notice the flammable foam and his increasing the club’s permitted capacity by implausibly calling the whole place “standing room” were in bad faith — a pretty tall order.
By contrast, the band and the Derderians were slam-dunks, as far as liability was concerned. Great White set off the pyro, and the club owners condoned it — if not specifically that night, then for all the pyro bands that appeared there. Unfortunately, the band only had a million dollars of insurance, and Jack Russell, having emerged from personal bankruptcy only six months before the fire, was not exactly in a position to supplement it. The Derderians, with only a million dollars of insurance themselves, filed for personal bankruptcy after the fire. End of story for the most clearly culpable civil defendants. Not a penny of their personal money would ever flow to the families of those whom their negligence had condemned to death or injury.
The law of principal and agent can work in ways that the general public may not immediately grasp. When the Third Amended Master Complaint named Anheuser-Busch and its Rhode Island distributor, McLaughlin & Moran Inc., as defendants, the bloggers scoffed. “The beer company?” “The beer company?” However, it was not quite the stretch they imagined.
The Budweiser companies ran a promotion of the Great White concert on radio station WHJY, handing out bottles of “born-on” dated beer that night and providing banners proclaiming, “Party with HJY and Budweiser” and “The Station Presents Great White.” A cursory inquiry by Budweiser concerning the band it was promoting would have revealed that Great White had been setting off illegal pyrotechnics in small clubs throughout the country well before it arrived in West Warwick. Our master complaint alleged that the beer companies had a duty of at least minimal inquiry before attaching the Budweiser name to what was, essen
tially, a traveling criminal enterprise.
What’s more, the Anheuser-Busch family of companies was not exactly a stranger to the hazards of indoor pyrotechnics. Because of their ownership of the Busch Gardens and SeaWorld theme parks, senior officials of Anheuser-Busch Companies and Busch Entertainment Corporation served as members and alternates on the National Fire Protection Association’s Technical Committee on Special Effects, the drafter of NFPA Standard 1126, which is the national safety standard for the use of pyrotechnics “before a proximate audience.” That standard forbade just about every aspect of Great White’s pyro show at The Station.
When you’re in the business of selling an intoxicant, you’re in the business of risk management. Because the consumption of beer necessarily involves some risk, the only question is what degree of risk is acceptable as a matter of public policy. Beer-slowed reaction times impair driving. They also affect how quickly a crowd responds to perceived danger. Was it asking too much that this purveyor of intoxicants, whose subsidiaries helped set the NFPA standard for indoor pyro use, look at the pyro practices of the band it was promoting with its trusted name, banners, and intoxicant giveaways? Budweiser had only to visit Great White’s website in the weeks before the fire to see pictures of the band shooting pyro indoors.
But that was not all. Our investigation revealed that on the night of the fire, Mike “Dr. Metal” Gonsalves’s “talent fee” — a check made out to him personally — was written by Budweiser distributor McLaughlin & Moran. Gonsalves was, therefore, probably the agent not only of WHJY that night, but also of the beer distributor, as he stood before the Station crowd exhorting them to “drink all the Budweiser in the place” — while Dan Biechele set up illegal pyro onstage behind him. If the emcee, Dr. Metal, sufficiently controlled the stage at that moment to make his radio employer, Clear Channel, vicariously liable, then the company that actually paid him to hawk beer and toss out Budweiser hats and T-shirts that night was also his principal. “Dual agency” strikes again. Moreover, if Anheuser-Busch exercised sufficient control over the manner in which its licensees (like distributor McLaughlin & Moran) used the Budweiser trademark in promotions, then it, in turn, could be McLaughlin & Moran’s principal with regard to use of the mark in promoting the Great White concert. At least, that is what we on the Plaintiffs’ Steering Committee researched, and pled — and the Free Riders readily adopted.
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