Killer Show

by John Barylick

  191 Another patron, Frederick Vallente Witness statement of Frederick Vallente, November 6, 2003.

  192 Butler could not have disagreed more strongly Affidavit of Brian Butler in Support of Motion for Summary Judgment, March 5, 2007, in Gray et al. v. Derderian et al. (hereafter, Gray), CA No. 04–312-L, USDC–RI, p. 2, 6.

  192 We also knew that Gonsalves’s weekly salary Pay stub for Michael Gonsalves from Clear Channel Communications Inc. for period ending February 28, 2003.

  192 Warner himself alleged Fax from “A Knowledgeable Source” to Randy White of the Rhode Island Attorney General’s Office, May 28, 2003, acknowledged as sent by Barry Warner, in witness statement of Barry Warner, November 3, 2005.

  192 Plaintiffs alleged that the foam was defective because Third Amended Master Complaint in Gray.

  193 The PU foam manufacturing defendants would have none of it Motions of General Foam Corp. and Leggett & Platt Inc. for Summary Judgment, in Gray, Doc. Nos. 1231 and 1241 (April 9, 2007).

  193 Moreover, the possible PU foam manufacturers contended Ibid.

  193 The Derderians’ lease Lease between Triton Realty Limited Partnership and DERCO LLC, March 1, 2000.

  193 That warranty ran only to the Derderians Defendants, Triton Realty Limited Partnership, Triton Realty Inc., and Raymond J. Villanova’s Memorandum of Law in Support of Summary Judgment, April 9, 2007 (Gray Doc. No. 1192) pp. 16–17.

  194 Unfortunately, the same Rhode Island statute Rhode Island General Laws, Title 23, chap. 28.2, sec. 17

  195 Because of their ownership of the Busch Gardens and SeaWorld theme parks NFPA Standard 1126, 2001 ed., “Standard for the Use of Pyrotechnics before a Proximate Audience,” National Fire Protection Association, 2001, p. 1126–2.

  195 Budweiser had only to visit Great White’s website Affidavit of Jeffrey L. Hair, November 21, 2004, filed with Memorandum of Law in Support of Plaintiffs’ Objection to the Motion of the “Clear Channel Defendants” to Dismiss or, in the Alternative, for Summary Judgment, November 22, 2004.

  195 Our investigation revealed that on the night Memorandum in Support of McLaughlin & Moran Inc.’s Initial Motion for Summary Judgment, April 9, 2007 (Gray Doc. No. 1209), p. 8; Defendants Clear Channel Broadcasting Inc. and Capstar Radio Operating Company, as successor-in-interest to WHJY Inc.’s statement of Undisputed Facts in Support of their Motion for Summary Judgment, April 9, 2007 (Gray Doc. No. 1246), pp. 9–10, 28; grand jury testimony of WHJY employee Jeremy Gately, May 28, 2003, p. 13.

  196 It didn’t hurt plaintiffs’ claim that the pyro manufacturer Interview of Scott J. Ward by ATF special agents Josh Legere and Josh Rusk, June 23, 2003, in which Ward stated that the owner of Luna Tech Inc. called him “10–14 days after the Station fire” to give Ward the “heads up” that his license number had been improperly used two years earlier to sell gerbs to Randy Bast, who in turn sold them to Dan Biechele.

  196 For years before the Station fire, multiple insurance companies Inspection Reports of High Caliber Inspections Inc., April 4, 1996, and March 25, 1998; Gifford & Co. Inc., August 27, 1999; Abacus Service Co., April 27, 2000; Multi-State Inspections Inc., October 8, 2002.

  196 The insurance inspections defendants argued Motions of Underwriters at Lloyd’s, London (February 4, 2005) and Essex Insurance Co. (August 25, 2004) to Dismiss the Complaint, in Gray.

  196 And Judge Lagueux agreed Decision and Order, In Re Motions to Dismiss of Defendants Essex Insurance Company, Multi-State Inspections, Inc., and High Caliber Inspections, Inc., November 9, 2005, Gray Doc. No. 587; In Re Motion to Dismiss of Defendant Certain Underwriters at Lloyd’s, London, December 6, 2005, Gray Doc. No. 608; In Re Motions to Dismiss of Defendants Anchor Solutions Company, Inc. (previously Abacus Service Company, Inc.), V. B. Gifford & Company, Inc., Gresham & Associates of RI, Inc., and Surplex Underwriters, Inc., December 13, 2006, Gray Doc. No. 1122.

  198 Rhode Island’s joint tortfeasor contribution statute Rhode Island General Laws, Title 10, chap. 6, secs. 7, 8.

  200 Once I realized there was a fire Affidavit of Brian Butler in Support of Motion for Summary Judgment, March 5, 2007, p. 2, 6. Emphasis mine.

  200 What that analysis revealed was striking Brian Butler videotape, February 20, 2003, at 7:00–8:00 (run time).

  200 “You need a live truck down here Ibid. at 14:33 (run time).

  201 settlements would be struck with most Groupings of defendants, and their respective settlement contributions, are set forth in Exhibit D to “Master Release, Indemnity and Settlement Agreement,” Gray Doc. No. 2041–3, December 11, 2009.

  201 I had the opportunity to show members of the West Warwick Town Council Presentation before West Warwick Town Council, April 2, 2008.

  27. BURNING QUESTION

  204 Julian spent the better part of a day Deposition of Howard Julian, January 10, 2006, [page]/[line(s)]: 9/19; 10/1–10&25; 11/1–2; 15/7–10&22–25; 16/1–4; 18/24–25; 19/21–25; 20/1–10 20/24–25, 21/1–3.

  204–5 Mickey Mikutowicz’s Black Sabbath tribute band Statement of Michael Mikutowicz, September 15, 2005.

  205 Inside the club Deposition of Howard Julian, p. 32, lines 17–25.

  205 At his first inspection of The Station Deposition of Howard Julian, p. 33, lines 1–2; Field Inspection Notice of Denis Larocque, March 2, 2000.

  205 Several weeks later, however, the Derderians Deposition of Timothy Arnold, May 2, 2005, pp. 28–38.

  205 Mikutowicz’s band, Believer, was scheduled to play Coming-attractions poster from The Station, February 2003.

  205 The night of the fire, Mickey watched the story Statement of Michael Mikutowicz, pp. 10–11.

  206 Even the NIST investigators seemed troubled NIST Report, March 2005, pp. 4–14.

  207 One of the objects photographed Exhibit 04–0283-PR, evidence at West Warwick Police Department, viewing of July 1, 2005.

  208 Mickey’s video statement documented Statement of Michael Mikutowicz; list of Believer appearances at The Station, 1996–2002.

  208–9 According to Julian Deposition of Howard Julian [page/line]: 24/24 (“a foam business”), 25/9 (“Rhode Island”), 23/25; pp. 24–29, inclusive.

  209 and Sealed Air Corporation Technically, “Sealed Air Corporation” was dismissed as a defendant. Its related corporation, “Sealed Air Corporation (US)” remained as a defendant in the lawsuits.

  209 its flagship product, BubbleWrap BubbleWrap began its life in 1957 as a failed attempt at flocked 3-D wallpaper. In a moment of genius (and, possibly, consideration for interior decorators worldwide), its inventors realized that the product had more potential as a packing material.

  210 Lovely pie-charts from that research “AVI Laminated Planks Market Share, 1995–1996” chart.

  210 Arnold finally admitted that, as he watched Julian Affidavit of Timothy Arnold, June 19, 2007, 9–15.

  211 So it probably saw no harm Motion for Summary Judgment by Defendant Sealed Air Corporation (US), April 9, 2007, Gray Doc. No. 1242, Exhibits A–C.

  213 They set fire to the structure “Time of PE Involvement (PU&PE Sandwich, Modified Corner)” chart, Western Fire Center Inc.

  213–14 The results were stunning “Comparison of HRR [heat release rate] for PU Foam and PU+PE Foam Sandwich (Modified Corner Test)” and “Carbon Monoxide Production from PU and PE+PU Foam Sandwich (Modified Corner Test)” charts, Western Fire Center Inc.

  215 We came to learn that Sealed Air and Sentinel Affidavit of John D. Bambara, June 4, 2008.

  215 Scott would use a standardized test methodology See American Society for Testing and Materials, ASTM D2765, “Standard Test Methods for Determination of Gel Content and Swell Ratio of Crosslinked Ethylene Plastics.”

  216 My next PowerPoint slide was a direct quote PowerPoint slide from Sealed Air mediation presentation, June 10, 2008.

  216–17 My comments today are restricted to the issue Statement of Frederick W. Mowrer, Ph.D., P.E., FSFPE, to the Special Meeting of NFPA’s Technical Committee on Assembly
Occupancies, March 13, 2003. Emphasis mine.

  217 Up went the slide showing Sealed Air’s resulting market share PowerPoint slide from Sealed Air mediation presentation, June 10, 2008.

  28. DIVINING THE INCALCULABLE

  220 Lawyers are prohibited by ethical rules Rhode Island Rules of Professional Conduct (based upon ABA Model Rules of Professional Conduct), Rule 1.8(g).

  220 Only with each of his clients’ informed consent Ibid.

  220 Courts have the power to appoint individuals Federal Rule of Civil Procedure 53.

  220 The special master eventually appointed by Judge Lagueux Order of Reference to Special Master Francis E. McGovern, November 27, 2008, in Gray, Doc. No. 1735.

  220 McGovern had previously served Curriculum vitae of Francis E. McGovern.

  223 In 2003, children of a decedent Rhode Island General Laws, Title 10, chap. 7, sec. 1.2.

  223–24 Under that plan Plan of Distribution of Special Master Francis McGovern, Exhibit 2 to Plaintiffs’ Memorandum in Support of Their Motion for Approval of Special Master McGovern’s Proposed Plan of Distribution, February 6, 2009, Gray Doc. No. 1949–2.

  224–25 Verification of each victim’s medical expenses would be performed Plaintiffs’ Memorandum in Support of Their Motion to Appoint Jeffrey Dahl as Neutral Verification Expert, February 6, 2009, Gray Doc. No. 1950–2.

  225 In his final report to the court, special master McGovern Preface to Proposed Plan of Distribution, by Special Master Francis McGovern, November 5, 2008.

  225 A document acceptable to all parties did not emerge Exhibit 1 to Memorandum of Law in Support of Plaintiffs’ Motion to Accept the Report and Recommendation of Special Master Poore and Approve Minors’ Settlements, December 11, 2009, Gray Doc. No. 2041–2.

  226 In the mid-1990s, Perry Walton Richard B. Schmitt, “Staking Claims: A Las Vegas Lender Tests Odds in Court—and Forms an Industry—Funding Lawsuits Pays Off for Mr. Walton,” Wall Street Journal, September 15, 2000.

  226 By 1999, Walton was back operating Ibid.

  226 The advance would only be collectible from the proceeds Courtney R. Barksdale, “All That Glitters Isn’t Gold: Analyzing the Costs and Benefits of Litigation Finance,” 26 Rev.Litig. 707 (2007).

  226 The industry is unregulated Susan Lorde Martin, “Litigation Financing; Another Subprime Industry That Has a Place in the United States Market,” 53 Vill.L.Rev. 83 (2008).

  227 because the industry is largely unregulated Martin, 53 Vill.L.Rev. 83.

  227 The CEOs of two LFCs have been quoted as Christina Merrill, “Judgment Call; Firms That Lend to Personal Injury Plaintiffs Take Steps to Improve Their Bad Guy Image,” Crain’s New York Business, January 27, 2003; Mike France, “The Litigation Machine,” Business Week, January 29, 2001, p. 114.

  227 Lawyers are barred by ethical rules from lending money Rhode Island Rules of Professional Conduct (based upon ABA Model Rules of Professional Conduct), Rule 1.8(3)(e).

  29. MEMENTO MORI

  228–29 The individual memorials at the Station site began Zachary R. Mider, “Archaeologists Study Station Memorials,” Providence Journal, February 19, 2005.

  229 A cross for Sandy and Michael Hoogasian G. Wayne Miller, “Our Ground Zero,” Providence Journal, February 20, 2009.

  229 One Station patron, who narrowly escaped from the flames Peter C. T. Elsworth, “A Rolling Memorial Born of Tragedy,” Providence Journal, February 20, 2008.

  229 The father of one young woman killed in the fire Michael Corkery, “Words of Contrition and Words of Anger,” Providence Journal, February 20, 2004.

  229–30 One grieving parent took it upon herself Associated Press photo 03091503035, by Victoria Arocho; note provided by Jodi King, vice president of the Station Family Fund.

  230 Russell’s career continued apace following Scott Smith, “Great White on Rib Room Menu for Aug. 18,” Fort Smith (AK) Times Record, August 12, 2010.

  230 sans pirate bandanna and four inches of hairline Official Great White website photo, August 2010.

  230 The seating capacity of Neumeir’s is two hundred Arkansas Department of Parks and Tourism website, 2010.

  230 At a memorial service one year after the fire Cathleen Crowley, “Station—February 20, 2003—a Year of Healing—in R.I., Greater Fire Safety Will Take More Time,” Providence Journal, February 20, 2004.

  230 In the past, Human Clay had hired Witness statement of Frank Davidson, February 22, 2003.

  230 He spent only two years and three months Talia Buford, “Alert: Derderian Gets Out of Prison Early on Good Behavior,” ProJo 7-to-7 News Blog, June 25, 2009.

  230 A year after the fire, the brothers tried Decision of Gibney, J. in Michael Derderian and Jeffrey Derderian v. Essex Insurance Co., CA No. PC-2004–3458, June 25, 2009.

  230 In yet another legal proceeding Lynn Arditi, “Derderians Held Not Liable for $1 Million Insurance Fine,” Providence Journal, February 28, 2004.

  231 Less than a year after his early release from prison Talia Buford, “Derderians Bow Out of Talk at Safety Conference in Pennsylvania,” Providence Journal, February 18, 2010.

  231 The only other person who was convicted of a crime John C. Drake, “Biechele Gets Parole in Station Club Fire,” Boston Globe, September 20, 2007; “Great White Manager Released from Jail,” Associated Press, March 19, 2008.

  231 The Station fire evoked an unprecedented outpouring Titan Report, §§ F-25, F-26 and F-27.

  231 It was inevitable that someone would try to game Witness statements of Jessica Studley, June 17, 2004, and August 23, 2004; witness statement of Brian Loftus, March 20, 2003; witness statement of Officer Michael Turner, Warwick Police Department, August 20, 2004; Application for Crime Victim Compensation of David M. Fravala, March 16, 2004 (the latter two published by AG under “statements of Jessica Studley [2]”).

  231 The tragedy spurred improvements to Rhode Island’s fire code Rhode Island General Laws, Title 23, chap. 28.1, sec. 1, et seq.

  232 Changes of a different kind occurred for several officials Complaint in Wolfgang Bauer v. Town of West Warwick et al., CA No. KC-08–0524, 28, 33; letter from David D. Clayton, West Warwick Town Council clerk, to Wolfgang Bauer, December 5, 2007; William O’Gara, litigation counsel for West Warwick, in discussion with the author, February 2, 2010; C. Eugene Emery Jr., “Ex-Town Manager in Line for Pension,” Providence Journal, December 11, 2009.

  232 Jay Kingston, the ME investigator Jay Kingston, in discussion with the author, July 29, 2011.

  232–33 Kingston’s boss, Chief State Medical Examiner Elizabeth Laposata, MD Michael P. McKinney, “They Won’t Forget,” Providence Journal, June 14, 2005; Jay Kingston, discussion with author.

  233 Notwithstanding Dr. Laposata’s apparent reluctance Bryan Rourke, “A Vision of Philadelphia Takes Shape in an Empty Warehouse in Warwick,” Providence Journal, August 27, 2010.

  233 West Warwick town building official Stephen Murray Talia Buford, “West Warwick Building Official Fired,” Providence Journal, February 20, 2008.

  233 West Warwick fire chief Charles D. Hall Ibid.

  233 Even more complex retirement plans were carried out Benjamin N. Gedan, “West Warwick Fire Official Shifts Post,” Providence Journal, October 4, 2005.

  233 Then, in mid-2006, Larocque Talia Buford, “Fire Marshal Retires on Disability Five Years after Club Fire,” Providence Journal, February 14, 2008. It was also reported in 2012 that Larocque used his disabled-firefighter status to obtain taxpayer-paid tuition for his children within Rhode Island’s state university system. Katherine Gregg, “State Law Provides Tuition for 91 on Disability Pensions,” Providence Journal, May 9, 2012.

  233 tax-free See Internal Revenue Code, § 104(a)(1).

  233–34 Barry Warner, the American Foam Corporation salesman Witness statement of Barry Warner, November 3, 2005, p. 3, lines 1–10.

  234 Warner’s grim front-yard tableau brings to mind Mark Jones, “The First Two-Hundred Acres: Arlington National Cemetery,” Nationa
l Park Service website, August 5, 2002 (citing James Edward Peters, Arlington National Cemetery: Shrine to America’s Heroes, 2nd ed. (Bethesda, MD: Woodbine House, 2000); letter, Colonel J. M. Moore to Major General D. H. Rucker, December 11, 1865; National Archives, RG 92: Records of the Office of the Quartermaster General, Records relating to functions: cemeterial, 1829–1929 and general correspondence and reports relating to national and post cemeteries (“Cemetery file”), 1865–c.1914, Arlington, VA, Box 7, NM-81, Entry 576.

  234 Barry Warner still owns the house West Warwick Tax Assessor Database, last accessed September 12, 2011.

  INDEX

  Note: Italic page numbers refer to The Station floor plan illustration.

  211 Cowesett Avenue. See Cowesett Avenue (number 211)

  9/11 terrorist attacks, 2, 141–43, 186

  ABC Bus Inc., 196, 250

  acoustical insulation. See sound insulation

  acrolein, 101

  advances (litigation financing), 226–27

  allocation of settlement monies. See distribution of settlement monies

  American Foam Corporation, 18–19, 132–33, 211

  culpability, 192–93

  settlements (legal), 202, 250

  American Red Cross, 135–36, 144, 146

  Anderson, Kevin, 138–39

  Anheuser-Busch, 49, 194–95, 202, 250

  Antonelli, Richard, 15–16

  Appolonia, Gary, 119–20

  Araujo, Brian, 119–20

  Arnold, Tim, 8–9, 19, 210–11, 216

  Arpin, John, xii, 14–15, 76, 79, 94, 268n

  Arruda, Chris, 120

  Arruda, Elizabeth, 106–7

  Arruda, Kristen, 56, 62

  artifacts. See personal effects

  ASTM D-1692 flammability test, 131

  ATF. See Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)

  attorneys, 180–83, 187–89

  audiotapes, 109–14

  autopsies, 139–40

  Ayer, Tina, 35, 62, 138

  Bagtaz, Karla, 24, 58, 138