Killer Show: The Station Nightclub Fire (42 page)

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 the 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 ghastly 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.

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.