Several other defendant groups rounded out the field. Our master complaint alleged that the installer of the fire alarm system at the time of the Derderians’ takeover of the club failed to install smoke detectors in the building’s HVAC ducts, as required by the building code at the time, which would have immediately shut down the air handlers feeding fresh air to the fire. We also alleged that the manufacturer and seller of the pyrotechnic gerbs failed to adequately warn users that its product’s sparks, thought by many to be “cool sparks,” could not be used where they might strike any flammable surface. (It didn’t hurt plaintiffs’ claim that the pyro manufacturer had previously shipped pyrotechnic gerbs interstate to Randy Bast — who sold some to Dan Biechele — using a phony pyrotechnic operator license number. The pyro company thereafter lost its federal ATF license.) Our final complaint also alleged that the bus company for the Great White tour violated a federal statute regulating the transport of specified quantities of fireworks across state lines. We added them all as defendants, perhaps in an excess of caution.
We also sued one other major group of defendants. For years before the Station fire, multiple insurance companies conducted inspections of the club’s building as part of their underwriting process. Inspectors for Lloyd’s of London and Essex Insurance Company, the “insurance inspection defendants,” toured the property, oblivious of the flammable polyurethane foam that covered the entire west end of the club. Had any one of them blown the whistle on the presence of solid gasoline on the club’s walls, the entire tragedy would have been averted.
Unfortunately for the fire victims, however, tort law requires more than negligence on the part of a defendant, even if reasonable care by that defendant would have prevented the tragedy. As a threshold inquiry, courts determine whether a defendant “owed a legal duty” to the class of injured plaintiffs. The insurance inspection defendants argued that it didn’t matter how negligent they may have been, because they only conducted the inspections for their own purpose — deciding whether or not to write insurance policies. They never undertook the inspections to protect the public and, therefore, owed no legal duty to the general public — no matter how careless they may have been.
While no cases had been decided in Rhode Island on these facts, the law in most other states is exactly as urged by the insurance inspection defendants — that they have no legal duty to the plaintiffs, no matter how negligent they may have been. And Judge Lagueux agreed, granting the insurance inspection defendants’ motions to dismiss all the claims against them. It was a serious blow to the plaintiffs, but not wholly unexpected.
Actually, the dismissal of claims against the insurance inspection defendants was a good example of the legal process at work. Plaintiffs’ attorneys must necessarily plead as broadly as good faith allows — particularly in catastrophic mass tort cases such as the Station fire. Then, marginal legal theories are tested by preliminary motions, and some are dismissed long before trial. This winnowing-down by pretrial motion (either motions to dismiss, or for “summary judgment”) is the safety valve of the civil justice process. Moreover, unknown to most laymen is that even after trial and verdict, claims can be thrown out by the judge if the evidence did not meet purely legal requirements. Despite assertions of “tort reformers” (read: insurance lobbyists), complex tort litigation is anything but “jackpot justice.” The mill of justice may grind slowly, but it grinds exceedingly fine.
Finely or coarsely ground, justice in the Station fire cases would have to deal with the complications posed by multiple parties. Even the simplest case, like an automobile intersection collision, can involve multiple parties. A driver whose car is T-boned by another running a red light will likely sue the other car’s driver. But if his injuries are worse than they might have been because a safety feature on his own car was defective, he might also add his car’s manufacturer as a defendant.
Most cases involving multiple plaintiffs and defendants settle, if at all, in piecemeal fashion. That is, some defendants settle, and others don’t. Still others may settle later, leaving yet fewer remaining defendants to go to trial. In the case of the intersection collision, the defendant driver might settle by paying his insurance policy limit, leaving the auto manufacturer as the lone remaining defendant.
One thing about the consolidated Station fire cases was fairly certain, however: no defendant wanted to be the last non-settler going to trial. Defense counsel spoke of not wanting to be “the last one at the party.” Given the enormity of potential damages awardable, a defendant would not want to be standing alone as a jury was being impaneled.
A defendant will not settle a case and leave other defendants in the case to go to trial, however, if there is any chance that the non-settling defendant can later sue him for contribution after the non-settler gets whacked at trial. For this reason, and in order to encourage settlement of disputes, most states have enacted some version of the Uniform Contribution Among Joint Tortfeasors Act. Unfortunately, Rhode Island’s version was outmoded and contained a wrinkle that could cripple settlement efforts in the Station cases.
In most states the system works as follows: in order for a settling defendant to have all claims of contribution (by non-settling defendants) against it extinguished, the settlement must provide that the amount later recovered at trial against non-settling defendants gets reduced by the amount that was earlier paid by the settling defendants. In other words, the non-settling defendants get a credit for each dollar paid by the early-settling defendants. In consideration for this, they lose their right to sue the settling defendants for contribution. The beauty of the setoff is that it is predictable. A plaintiff knows exactly what will be the result of his settling against some defendants and going to trial against others. And a settling defendant knows that he is out of the case for good.
Rhode Island’s joint tortfeasor contribution statute, however, was stuck in the past. Its version of the law, promulgated in 1939, provided that the amount of any judgment later obtained at trial against non-settling defendants would be reduced by the greater of either what the settling defendants already paid, or the settling defendants’ proportion of fault, as later determined at trial. So, a plaintiff considering settlement with one defendant could not know with any certainty what effect that settlement would have on his recovery against remaining defendants.
In the auto accident case, the Rhode Island law would work this way. If the plaintiff settled with the driver of the other car for his $25,000 policy limit, then went to trial and obtained a $1 million judgment against the car manufacturer, the jury would be asked to determine the percentage fault of the other driver. If the jury found the other driver 90 percent at fault, the judgment against the car manufacturer would be reduced by $900,000 — not the $25,000 received from the other driver.
Applied to the facts of the Station fire, this rule presented the plaintiffs with a terrible dilemma. Great White was happy to offer its $1 million insurance policy limit to settle. But if the plaintiffs accepted it, and a subsequent jury trial found the band to have been 90 percent at fault, then a $500 million judgment against all the remaining defendants would not be reduced by the $1 million paid by the band, but by 90 percent of $500 million. For this reason, the plaintiffs could not consider any settlement offer by any defendant. (The Uniform Contribution Among Joint Tortfeasors Act was modified in 1955 to recommend a straight dollar-for-dollar setoff of monies received from the settling defendant against any judgment obtained against non-settling defendants. For some reason, Rhode Island, unlike most other states, never got around to enacting the 1955 revision.)
I became convinced early on that modifying Rhode Island’s joint tortfeasor contribution statute would be the linchpin for any settlement of the Station fire litigation. To that end, I set about drafting and urging passage of a change that would bring the state into line with most others, providing for a straight dollar-for-dollar setoff when one of many defendants settles.
For almost a year, one front in t
he Station fire war became a legislative battle in the Rhode Island General Assembly. With several Station fire burn victims at my side, I appeared before House and Senate judiciary committees, urging modification of our outmoded joint tortfeasor contribution statute. Arrayed against me was a phalanx of defendants’ lobbyists determined to thwart any change. It finally took a special act of the Rhode Island legislature three years after the Station fire to bring the state up to date with the majority of jurisdictions that have a predictable dollar-for-dollar setoff. But the change was limited to cases in which “there are 25 or more deaths from a single occurrence.” (Defense lobbyists were determined that, if such a settlement-encouraging modification were to pass, it would apply only to the Station fire.)
At the same time I was fighting the plaintiffs’ legislative battle, pretrial motion practice continued in the courtroom. Thirty defendants filed motions to dismiss the cases against them on purely legal grounds, each of which had to researched, briefed, and argued before the federal court. (A motion to dismiss says, in effect, “Even if every fact alleged by the plaintiffs in their complaint is true, their claim cannot succeed as a matter of law.”) It took a full eighteen months to adjudicate all the motions to dismiss, but at the end, all but the insurance inspection defendants’ motions were denied by the court.
After that, the cases moved into the “summary judgment” stage. (A motion for summary judgment effectively says, in hundreds of pages, “The plaintiffs cannot marshal sufficient evidence to prove the facts alleged in the complaint.”) In this phase, some thirty-one defendants moved to have the cases against them thrown out, supporting their motions with not only legal argument but deposition testimony, documentary evidence, and affidavits. The PSC responded to each such motion by requesting detailed discovery of persons, objects, and documents in order to develop their opposing proofs. It was during this stage of the proceedings that the modification to Rhode Island’s joint tortfeasor contribution law was passed, enabling settlement movement for the first time.
The first deep-pocketed defendants to come to the table, agreeing to participate in private mediation in an attempt to settle, were unlikely ones — Brian Butler and WPRI. Butler’s defense was set forth in a sworn affidavit that he had filed in support of a motion for summary judgment. In that document he averred:
Once I realized there was a fire, I immediately turned to leave. I began walking toward the exit with the camera carried across my chest aimed in the general direction of the stage and the band. . . . I did not see what was occurring behind me as I made my way toward the exit, but the video camera was filming continuously from the start of the fire until I exited. Once I first noticed the flames I did not stop to film the patrons: I exited the building. After I turned from the stage, I did not look into the camera view finder again to film a shot until after I was outside The Station.
In response, we turned to the Butler video itself, which our experts had examined frame by frame. The experts’ analysis was embodied in a computer animation that depicted Butler (and his camera’s) vantage point within the club on a second-by-second basis. What that analysis revealed was striking. For approximately thirty seconds after the fire’s ignition, Butler’s camera moves with him toward the main doors; then it appears to stop. Butler at that point shoots toward the stage, in a direct sight-line to the stage door. His position for the next eight to ten seconds appears relatively static. People in the crowd behind Butler can be seen pressing forward against him, trying to get to the main doors. Recognizable among those people is Erin Pucino.
One might argue that an eight-to-ten-second delay did not make a material difference to people’s egress; however, Erin Pucino became trapped in the pileup at the front door, only to be pulled from it moments before flames engulfed everyone behind her. From her example alone it would appear that seconds counted for many victims.
Perhaps the most probative piece of evidence concerning Brian Butler came not from the video, but from the audio track of his film that night. From the moment of the fire’s ignition, Butler’s camera ran continuously, capturing sights and sounds in real time. The tape depicts his escape from the club, his two trips around to the stage-door exit, and the horrific aftermath in the club’s parking lot. Then, seven and a half minutes post-ignition, Butler set his still-running camera on the ground next to his TV station truck, where it captured audio of his breathless cell phone call to station management: “You need a live truck down here right now! There are multiple, multiple deaths in this thing. You’ve got to get people down here. I’m fine. I got out, and I was one of the first people to get out of this place, but I saw what happened. I have it all on tape from inside.”
However, at the time of his phone call, Butler had not even stopped, much less reviewed, his tape. I argued at settlement mediation that his cell phone call was not the statement of someone who “did not see what was occurring” behind him, or someone who “did not look into the camera view finder again to film a shot” until he was outside. Rather, his call was the excited utterance of someone who had held his ground inside the club to get the shot. How did Butler know he had “gotten it all on tape from inside” if he never looked through his viewfinder? And, if he continued to frame his extended shot of the stage and stage door exit without ever looking through the viewfinder, Brian Butler was not only a lucky escapee, but one very lucky videographer.
Faced with the computer animation of Brian Butler’s position during his final minutes inside the club, the affidavit and photos of Erin Pucino pressing to escape behind him, and the audio of his cell phone call from the parking lot, the insurer for Brian Butler and his employer had to realize those defendants were probably not going to get out of the case on summary judgment. And, if summary judgment were denied, the price to settle would go up significantly. In light of this, the insurer eventually agreed to settle all claims against Butler and his employer for $30 million. By no means did Butler admit liability. But his settlement was the first chink in the Station defendants’ collective armor.
The settlement with Butler and WPRI sent a mild shock wave through the defendants’ camp. Butler and his employer were initially thought to be “peripheral” defendants. However, if they saw peril for themselves, then maybe others had more to worry about than they had originally thought. Over the next ten months, several other defendant groups would voluntarily participate in private mediation to see what we had on them. Eventually, settlements would be struck with most.
Plaintiffs’ attorneys showed Dr. Metal’s radio station employer, Clear Channel Communications, the evidence of Mike Gonsalves’s presence onstage while Dan Biechele set up the pyro. We also played Matthew Pickett’s audiotape of Gonsalves’s between-set patter (“We’re back. We’re fuckin’ back. . . . Drink all the Budweiser in the house”) for our Clear Channel counterparts. It is unknown whether the audio image of its employee hawking beer, while deadly pyro was set up on the stage behind him, played any role in Clear Channel’s final settlement offer of $22 million. That offer was, however, accepted.
One spring evening, five years after the fire, I had the opportunity to show members of the West Warwick Town Council a video demonstration of what the mandatory “match flame test” would have revealed to their fire marshal, Denis Larocque, had he performed it on The Station’s polyurethane foam. As flames raced up the sample of gray egg-crate foam, dripping blazing plastic, I marveled at the bored, almost aloof, expressions of several council members. Did they not care? Were they numbed by constant exposure to the tragedy? Or were they simply unwilling to accept that their own fire marshal had willfully ignored this “solid gasoline” on the club’s walls?
Then, I screened for the council a computer animation of the crowd density permitted by Larocque’s various occupancy calculations, with to-scale images of occupants’ “shoulder-prints” superimposed on the club’s floor plan. It stunningly depicted the cattle-car overcrowding sanctioned by Larocque. Finally, I played them some of Matthew Pickett’s ghas
tly audiotape of The Station’s last minutes. Only then did I hear some sniffles.
A few weeks later, the West Warwick Town Council agreed to settle all claims against the town for $10 million, some of which would be funded by bond debt. Larocque’s other principal, the state of Rhode Island, followed suit, pledging another $10 million to settle all claims against it.
Triton Realty Limited Partnership came up with $5 million to settle all claims; Anheuser-Busch, another $5 million. McLaughlin & Moran’s insurers offered $16 million. We accepted each. The fireworks manufacturers had $6 million in insurance and no other assets to speak of. We had no choice but to take it in settlement. As we did with the fire alarm installer’s $1 million. And the Derderians’ $1 million policy. Along with the band’s million. American Foam ponied up a total of $6.3 million, $5 million of which was insurance money.
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