Members of the Plaintiffs’ Steering Committee negotiated with the various possible manufacturers of the polyurethane foam, arguing that American Foam’s shipping and receiving documents narrowed its possible manufacturers to two. The PSC would eventually accept a total of $30 million to release claims against all the PU foam manufacturers they had sued. To the extent that any PU foamer believed that it had not sold the particular non-flameretardant foam that ended up on The Station’s walls, it had to also know that it sold the same stuff for years — without educating end users about the product’s flammability. If contribution to the settlement meant that it would be more forthcoming in the future marketing of its PU foam, then public policy was well served.
By the summer of 2008, settlements had been struck in principle with almost all defendants, totaling $151 million. The change in Rhode Island’s law of joint tortfeasor contribution had enabled the plaintiffs to rationally evaluate separate settlements with individual defendants, because they knew there would be a dollar-for-dollar setoff from any subsequent judgment. Defendants, for their part, were able to rationally assess the possible total damages in the case if they were to proceed to trial — and strike a deal whereby they could pay much less than their downside risk of going to trial — even with that number discounted for the possibility of a defendant’s verdict.
One other factor that motivated settlement by several defendants was that the litigation in federal court was proceeding at a glacial pace. Five years into the case, discovery in support of summary judgment motions had not yet begun. And defense counsel had already billed their clients millions of dollars, with the meter still running at a furious pace. In an ironic twist, the very deliberate pace at which the case moved in the defendants’ chosen forum caused many of them to consider settlement who might not have otherwise done so. In short, many defendants were being bled to death by their own counsel, with no end to the bloodletting in sight.
Most of the time, delay hurts plaintiffs. Here, counterintuitively, it came to work in their favor.
As we advanced our theories of liability in court against various product manufacturers, one question kept gnawing at our fire experts. One of those consultants, Robert “Brady” Williamson of the University of California at Berkeley, continued to study the Butler video — and puzzle over one of its features. Specifically, he observed that, mere minutes after ignition, flames of blowtorch intensity belched several feet from almost every window and door opening in the club. The stunning speed and ferocity of the blaze suggested to Williamson that some energy-rich fuel, beyond the Derderian-applied polyurethane foam, was feeding the fire. He just could not tell what it was.
CHAPTER 27
BURNING QUESTION
JUST PAST THE SIGN WELCOMING VISITORS to Kelso, Washington (“Home of the Highlanders”), is the entrance to a dingy industrial park. Nestled between the Truck & Axle Service Corporation and a local airstrip is a large gray metal building where grown men play with matches. And building materials. And substances that people are stupid enough to use as building materials.
The facility is home to the Western Fire Center. There, fire protection engineers conduct computer-monitored full-scale burn tests of materials and structures, and there would be answered one central mystery of the Station tragedy: how a building fire could spread with such fatal intensity in just a minute and a half.
In July 1996, when Howard Julian installed sound-deadening material in the drummer’s alcove of the club, fire safety was not his first priority. Julian spent the better part of a day taking rigid white plastic foam blocks, about seventeen inches square and two and a half inches thick, and screwing them to the three walls of the drummer’s alcove. First, however, he took remnants of soiled red carpet from the club and put them up on the walls as a backing material, figuring it would further deaden the sound. The old rug had another attractive quality: it was free.
Three-inch screws would do it, and Julian drove one at each corner of the white blocks with an electric drill. His then club manager, Tim Arnold, looked on with only passing interest. It was neither the first, nor the last, time an owner of the club would install sound dampening materials of dubious provenance there.
Mickey Mikutowicz’s Black Sabbath tribute band, Believer, played The Station about four times a year for a number of years. The night of July 19, 1996, found him back at the club, pretending to be Ozzy Osbourne after putting in a long summer day as a landscaper. But the gigs were good fun, and if he watched his costs, Mickey and his group could make a few bucks.
And Mikutowicz was good at watching his costs. He was extremely practical, and concerned with safety, as well. (He was the band leader who insisted on a “no pyro in the dressing room” clause in his contracts after seeing someone from another band pouring gunpowder into a flashpot at The Station with a lit cigarette dangling from his mouth.)
While packing up his band’s equipment the night of his July 1996 Station gig, Mikutowicz noticed a stack of white rigid foam blocks discarded outside the band door of The Station. “They’d be great to pad instrument cases,” he thought, and he threw several into the back of his van. Over the years, Mikutowicz would cut them up and use them in various projects.
Inside the club, Howard Julian finished his installation by spray-painting the white foam blocks on the walls of the drummer’s alcove black, and hanging a black curtain over them. That remained the alcove’s wall treatment for almost three years, until the Derderians bought the club in the spring of 2000. At his first inspection of The Station under the Derderians’ ownership, fire marshal Denis Larocque cited the club for the curtain over the walls of the drummer’s alcove, because it bore no fire-rating label. It was immediately taken down.
What Larocque may have thought about the spray-painted foam blocks underneath the curtain is unknown. Several weeks later, however, the Derderians used 3M spray adhesive to glue gray “egg-crate” polyurethane (PU) foam over the entire west end of the club — including the walls of the drummer’s alcove.
Mikutowicz’s band, Believer, was scheduled to play The Station again in February 2003, just eight days after Great White. The night of the fire, Mickey watched the story unfolding on TV and listened as reporters spoke of “flammable foam on the club walls.” He immediately thought of the discarded foam blocks he’d picked up outside the band door years earlier. One phone call to the Rhode Island State Police, and a federal ATF agent was on Mickey’s doorstep the next day to pick up his last unused block of the foam.
But the block of “Mickey foam” was dense, closed-cell white foam with about the rigidity of “swimming pool noodles” — not the flexible egg-crate stuff everyone saw covering the west end of the club just before the fire. As a result, the single seventeen-by-seventeen block, with curious L-shaped corner-cuts, was thrown into a West Warwick Police Department evidence locker, where it attracted no attention whatsoever — not of the police, the feds, or even the National Institute of Standards and Technology (NIST) team sent to examine the tragedy. Law enforcement would concentrate, for the case’s duration, on the egg-crate polyurethane foam seen catching fire on the corners of the drummer’s alcove in Butler’s video.
For six weeks after the fire, experts hired by the Plaintiffs’ Steering Committee combed the club’s wreckage for artifacts that might be of possible use in the civil litigation. They gathered over seven hundred specimens and took over a thousand photographs as they did. Affixed to each specimen was an embossed-brass exhibit tag. The investigators attached tag number 458 to materials covering a section of the south wall of the drummer’s alcove. These materials escaped being completely consumed by fire because they were so tightly sandwiched between the drummer’s riser and the wall itself. The wall materials were removed intact and stored in the plaintiffs’ civil evidence warehouse.
Several months after the fire, plaintiffs’ fire expert Brady Williamson still couldn’t grasp what energy-rich fuel, beyond the PU foam, drove the roaring blaze seen on the Butler video
. Sure, the PU foam caught fire quickly, almost like flash paper, but it would have expended its energy and burned out just as quickly. Even the NIST investigators seemed troubled by this conundrum, writing,
Once ignited, the polyurethane foam reached peak heat release rates . . . in less than 60 seconds. . . . The polyurethane foam was a low density material and was quick to ignite, but the mass of the foam was consumed in a relatively short period of time. The foam would have contributed to a quick initial fire growth, but typically would not have had sufficient mass to carry the fire past the initial stages.
Williamson felt strongly that something else had contributed to the initial fuel load, and in a big way.
On July 1, 2005, I joined about fifty lawyers, their fire experts, and photographers under a tent that had been erected in a field across the street from the West Warwick Police Station. We were invited there by the attorney general’s office to view Station fire artifacts stored in an evidence locker — actually, just a rusted green metal cargo container — for the pending criminal proceedings. It was pouring rain, and I was no more enthused about the endeavor than anyone else there. One by one, exhibits were removed from the locker and placed on a table, where we took turns photographing and videotaping them. No spokesman commented on any exhibit. It was show-and-tell without any “tell.” A dumb-show in the most literal sense. And just about as helpful.
One of the objects photographed, and speculated about, was a seventeen-by-seventeen-inch square of white foam, bearing an address label for one “Mikutowicz, Michael” of Adams, Massachusetts — hours away from West Warwick, Rhode Island. The foam was actually a laminate, consisting of four fused 5/8-inch-thick layers. I thought that perhaps Mikutowicz was some plastics expert or fire engineer. In any event, it was clear that the foam looked nothing like the egg-crate PU foam everyone knew caught fire. There were a few singed remnants of the actual PU foam, and those were venerated like the Shroud of Turin. But the clean white block of rigid laminated foam, with its small L-shaped corner-cuts, drew little interest from me or anyone else in the sodden crowd. It was quickly returned to the metal storage container.
I turned to my fire expert, Carl Duncan, and deadpanned, “Well, that stuff’s the key to the case.” We both laughed. What a useless exercise. It was getting late, and we were both getting wetter by the minute. After a few more worthless fire remnants made the rounds of the crowd, we repaired to our cars, convinced the day had been an utter waste.
Two months later, while I sat in my office, mired in motions, objections, and legal memos, my phone rang. It was Duncan. “Get out your exhibit photos from the fire scene. You’re gonna love this,” he began excitedly. “OK. Look at the pictures of Exhibit 458 — the mess of stuff from the wall of the drummer’s alcove.” I did. It was unrecognizable trash — singed fiber, plastic, screws, and pieces of carpet. It meant nothing to me.
“Look at the edge of the white stuff,” insisted Duncan. The material was heat-deformed and smoke-stained, but on closer inspection it looked like half-melted blocks of some four-ply material. And each block appeared to have a small, L-shaped notch cut out of the corner. “Look familiar?” crowed the fire investigator. Sure did. It was the same material as the clean white block from the West Warwick police evidence locker — with the name “Mikutowicz, Michael” on its label.
Once my heart rate returned to baseline, I placed a call to the only Michael Mikutowicz listed in Adams, Massachusetts, immediately discovering that this gentleman was no plastics engineer or fire scientist. “Mickey” Mikutowicz was a landscaper and snowboard instructor by day and Ozzy Osbourne imitator by night. The story of his acquiring the foam blocks outside The Station’s band door in 1996 was a revelation to me. “I know this is a long shot, but it’s very, very important,” I pleaded. “Do you possibly have any more of that stuff?”
Mikutowicz wanted to help the fire victims, but he was pretty sure he had given the ATF agent his only remaining piece. “Please check one more time — for the victims’ families.” Then I made a tactical decision. Forget cool. Forget professional reserve. I begged. “This stuff could be the key to identifying another critical defendant. You’ve got to help us.”
Mickey said he’d try, but he wasn’t optimistic.
Three long days later, the ersatz-Ozzy called me back. “You won’t believe this, but I’m going through the scrap barrel in my father’s workshop where I do all my projects. And here’s this piece of the laminated foam. It’s about seventeen inches long and three inches wide. And it’s got this corner cut, ya see.”
Adrenaline-wired, I assembled a team consisting of a videographer, court stenographer, and evidence technician, then dodged radar traps as I raced to take a sworn statement from Mikutowicz in western Massachusetts that same night. Upon arrival at his house, and before taking his statement, I first got a tour of his basement collection of snowboards. Then, another tour of Mikutowicz’s model airplanes, suspended from the ceiling by threads for verisimilitude. Luckily, this man was a collector — make that a pack rat.
Mickey’s video statement documented the chain of custody of the foam remnant and authenticated his ledger book listing Believer’s appearances in 1996. It contained an entry for July 19, the night Mickey cadged the foam blocks from outside The Station. The man’s story had the ring of truth; his remnant of foam was an absolute twin of the fire-damaged laminate in Exhibit 458.
I sped back to Providence, elated. We now had a pristine, vintage exemplar of the foam that Howard Julian applied to the walls of the club in 1996. And, what’s more, we could examine it in any way we wanted, in order to divine its origin. Unlike the heat-damaged specimen marked as Exhibit 458, which was under court control and not available for destructive testing of any kind, the “Mickey foam” was the plaintiffs’, to do with as we pleased. It was an evidentiary godsend. Find its seller and manufacturer, and two additional defendants could be added to the case.
The mystery laminated foam turned out to be closed-cell polyethylene (PE) foam. It was denser and more rigid than the convoluted polyurethane (PU) foam put up by the Derderians in 2000. It was certainly flammable and unsuitable for use as a wall covering. And it bore no warning whatsoever about flammability or dangerous misuse. But we hadn’t a clue where it had been purchased.
In order to learn where Julian bought the PE foam, I turned to Howard himself, taking his deposition under oath. But to no avail. According to Julian, he obtained the white foam blocks from “a foam business . . . [in] Rhode Island,” but he could not be more specific. He had no credit card receipt or business record of the purchase. (One would think that a business owner would want to document deductible expenses.)
Asked what type of business he bought it from, Julian responded, “I’m assuming, a foam business.” He further “assumed” that he found the business “from a phone book.” Julian “could not remember” how much he paid for the foam, whether he paid by cash, check, or credit card, whether he first measured the alcove to determine how much foam to buy, or even how many pieces he bought. Nor could he remember whether the blocks he “bought” had notched corners. The ex-owner had exquisitely detailed recollection of most other aspects of the club — just not where he bought the flammable foam that he screwed to the walls of the drummer’s alcove.
As the three-year statute of limitations approached, attorneys from the Plaintiffs’ Steering Committee scrambled to figure out who sold Julian flammable foam for use as “sound foam” in a place of public assembly. To this end, they took forty depositions, including every business the 1996 Providence Yellow Pages suggested might have sold insulating materials to the public at that time. None had any records of a sale to Julian, and none, any recollection of the curious die-cut, notch-cornered block in the police evidence locker. Depositions of ten machine shops that made dies at the time revealed no record of a punch die being manufactured in that notch-corner shape. Best they could guess, the foam blocks were intended for packaging, with the corners cut to fit a partic
ular product or box. We had hit a brick wall.
With the three-year anniversary of the fire looming, I had to finalize our Third Amended Master Complaint. It could not name any retail seller of the PE foam; rather, the only PE product defendants were the three companies who manufactured any substantial amounts of four-ply laminated PE foam in 1995 and 1996: Pactiv Corp. (the successor to a company called AVI), Sentinel Products Corporation, and Sealed Air Corporation. Sentinel Products was a Massachusetts corporation with minimal business or assets. Pactiv was huge, and Sealed Air was at least as large, its flagship product, BubbleWrap, used to pad mailers (and fascinate obsessive bubble-poppers) worldwide. If we could make product ID against either Pactiv or Sealed Air, we might have a shot at recovery, depending upon how the product had been sold in 1996. If it turned out, however, that Sentinel made the Julian-applied foam, that company was probably incapable of paying any substantial damages.
Pactiv took an unusually candid and proactive approach to its defense of the case. Early on, it sought an informal meeting at my firm during which its product engineers were permitted to nondestructively examine our precious piece of Mickey foam. When Pactiv’s experts looked at the Mikutowicz foam, their relief was obvious. The engineers announced that they were certain it was not theirs, because in 1996 Pactiv was technically incapable of producing four-ply foam of the high quality exemplified by our sample. Its fine grain, high cell count, and thin lamination layers were attributes that Pactiv, new to laminated PE foam production in 1996, strove for, but without success, until it completely revamped its production line in later years. During subsequent meetings, Pactiv personnel presented video of their production methods, physical samples of the company’s 1996 product, and copies of its 1996 quality-control records, all confirming Pactiv’s inability to manufacture the higher-quality foam that Julian put on The Station’s walls. As a result, we and our foam consultants became convinced, to a moral certainty, that Pactiv could not have manufactured the Julian-installed PE foam. Therefore, we voluntarily dismissed our claims against Pactiv.
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