Shortly after 11 p.m. on Feb. 20, 2003, the 1980s rock band Great White came on stage at the Station Nightclub, an old roadhouse in the blue-collar town of West Warwick, R.I. Nearly 550 people were packed into the club, which had a legal capacity of 404 people.
The club owners had placed “soundproofing” foam on the club’s interior walls, including a significant amount of polyurethane foam that had not been treated with any flame-retardant chemicals. It was the equivalent of “solid gasoline.”
As Great White performed, a band employee set off several pyrotechnics. Within seconds, the polyurethane foam ignited, and within minutes, the fire consumed the entire building. People panicked as the lights went out. Highly toxic smoke filled the club. Most customers tried to escape through the narrow corridor leading to the front doors, through which they had entered, but this caused a pileup. First responders found rows of bodies, three to four people deep.
One hundred people died and hundreds more were injured. The Station Nightclub fire was the fourth worst fire disaster in American history.
The litigation that followed was unique: It involved 306 plaintiffs and 97 defendants. After seven years, the litigation resolved for $176,193,718, which required unanimous approval by all 306 plaintiffs.1 The defendants were divided into 20 different settlement groups based on the similarity of their conduct or products.
The plaintiff lawyers who handled the litigation learned important lessons that can be applied in other complex, multiparty, mass tort cases involving nightclubs and other similar premises. The litigation was complex: It involved hundreds of difficult issues that needed to be resolved. We quickly realized the value of approaching our proof development in small, incremental steps. It was only after we took the first step that the second step became clearer. That step-by-step approach became our way of operating throughout the case.
Very few “degrees of separation” exist in Rhode Island. The entire state was in shock. A few plaintiff firms came together to try to understand why this tragedy occurred and what could be done about it. We formed working committees to investigate
- claims against the foam manufacturers and distributors
- claims against the State of Rhode Island and the Town of West Warwick
- claims against the band and the owners of the club and the land
- claims against the event promoters
- claims against the pyrotechnic manufacturers and distributors
- claims against other product manufacturers
- medical causation issues
- insurance issues.
We hired close to 20 experts in the fields of fire investigation and reconstruction, materials science and testing, pyrotechnics and explosives, fire detection and alarms, toxicology, pathology, and forensic art (such as drawings of the building layout).
Along with our experts, we spent almost two months at the fire site sifting through the wreckage to find fire artifacts (such as residual foam) to examine and test. Eventually, 717 artifacts were identified, photographed, tagged, and moved to a warehouse for safe storage. What remained of the stage was deconstructed, transported to a warehouse, and reconstructed there.
We filed miscellaneous petitions in state court concerning both case administration and substantive issues. They included petitions to enter the fire site with our experts to identify evidence of the cause and origin of the fire, to establish testing protocols for that evidence, and to appoint a plaintiffs’ steering committee to oversee the work performed at the fire site.
The defendants removed the case to federal court in Providence under the Multiparty, Multiforum Jurisdiction Act,2 which became effective only 18 days before the fire. The act turned many years of jurisprudence regarding “diversity of citizenship” jurisdiction on its head in an effort to restrict the ability to file “mass tragedy” cases in state courts.
To get photographs and videos of the club as it existed before the fire, we placed advertisements in the media in southern New England. Through these materials we were able to reconstruct what the club was like before the fire: Flammable foam was on the walls in many areas of the club.
We interviewed hundreds of plaintiffs and others who either attended the event or lost loved ones who died there. We took numerous depositions to identify the manufacturers of the artifacts we found, particularly the polyurethane, polystyrene, and polyethylene foam that was layered on the club’s walls.
Defendants and liability
The final complaint included 133 counts, involving products liability; strict liability; breach of warranty; civil liability for criminal acts3; and liability of the promoters, the government, the band, the realty and club owners, insurance inspection companies, and the cameraman.4
Polyurethane and other foam companies. In 2000, a local foam company sold untreated polyurethane foam to the club owners as “sound foam” to decrease the noise from the nightclub in the neighborhood. A video shot during the fire showed the foam in the stage area ignite shortly after the pyrotechnics were set off. This foam was highly flammable and created toxic smoke that caused serious burn and lung inhalation injuries and death to many of the victims.
The plaintiffs sued the local foam retailer and the manufacturers that supplied the foam to the local company. Legal claims included
- negligence in selling untreated foam for use in a nightclub
- failure to warn of the fast burn rate and lethal toxicity of the foam’s products of combustion
- lack of product stewardship
- strict liability
- breach of warranty.
Pyrotechnic manufacturers and distributors. The undisputed precipitating event of the fire was the ignition of pyrotechnics. Discovery revealed who manufactured and sold the pyrotechnics and who transported them into Rhode Island. Claims of negligence included
- failure to educate and warn users
- failure to use due care in the pyrotechnics’ manufacture, marketing, distribution, and sale
- strict liability
- breach of warranty.
Promoters. Our investigation revealed that a local radio station (and its parent company) and Anheuser-Busch (and its Rhode Island distributor) had promoted the concert at the Station. Anheuser-Busch was also a sponsor of the Great White tour. As a sponsor, the local radio station played a role in planning the event, and one of its radio personalities was the master of ceremonies, who we alleged controlled the stage during the event.
The plaintiffs asserted negligence in sponsoring the concert with knowledge that the band customarily used pyrotechnics, and failure to make a minimal inquiry sufficient to discover the dangers of Great White’s pyrotechnic performance, especially in a nightclub that had low ceilings and highly flammable foam on its walls.
Government. Our investigation revealed that the town fire inspector, who also acted as a Rhode Island deputy fire marshal, on two occasions had negligently inspected the Station and failed to rectify numerous violations, including failing to identify or order removal of the highly flammable interior finish on the wall. At the time of the fire, the nightclub’s capacity was vastly exceeded, despite the presence of a Town of West Warwick police officer.
The plaintiffs alleged the town and state governments failed to properly inspect the premises and discover the highly flammable interior finish, enforce the fire safety laws, and enforce appropriate capacity and exit requirements.
Band. The band defendants, which included the individual band members, its touring company, and its tour manager (who ignited the pyrotechnics), failed to obtain a valid permit for the pyrotechnics display, as state law required. Claims included negligence in igniting the pyrotechnics and failing to comply with applicable laws and regulations.
Realty and club owners. The nightclub’s owners and operators leased the premises from a real estate management company. Ironically, one of the nightclub owners was also an investigative reporter for a local TV station and was filming an investigative piece on nightclub safety on the night of the fire.
Our investigation revealed that in addition to many safety violations, the main entrance to the club was only 36 inches wide and narrowed to 18 inches as the patrons proceeded to a “ticket counter” as they entered the club. It was in this narrow entrance area that numerous victims were recovered.
The plaintiffs alleged that the nightclub owners
- contributed to and allowed overcrowding that night
- installed and maintained defective materials, including flammable foam and other interior finishes
- failed to provide for prevention, detection, and suppression materials (fire extinguishers)
- failed to provide proper and safe means of egress.
Claims against the realty owner included failing to correct open and obvious building and fire code violations, including the flammable foam.
Insurance inspectors. Before the fire, various insurance companies had inspected the nightclub before issuing liability insurance to the club and realty owners. None of these inspections identified or warned of the premises’ hazardous conditions.
The plaintiffs alleged that the inspectors were negligent in failing to identify multiple hazardous conditions on the premises and failing to warn of these hazards.
Cameraman. On the night of the fire, a cameraman—acting in the course of his employment—was filming within the Station for a piece on nightclub safety that one of the owners, also an investigative TV reporter, was working on. The cameraman was filming as the fire broke out. As distressed patrons tried to leave, he stood directly within an exit route and continued to film. Claims against him and his employer included negligence and vicarious liability for impeding the patrons’ ability to exit and contributing to the backup of people attempting to leave through the main exit.
The big picture
We had to think creatively and proceed step by step. Conventional proof likely would have resulted in only a fraction of the recovery obtained.
For example, our case against the promoters of the Great White concert led to a substantial portion of our clients’ recovery. We argued that before a promoter can promote an activity and invite the public to participate, it has to conduct at least a minimal investigation concerning safety issues surrounding the event or location.5
We asserted a novel claim against the polyurethane foam manufacturers alleging a lack of product stewardship. This stewardship refers to the manufacturer of a dangerous product being selective as to which entity it sells its product to and under what conditions. It also involved the manufacturer providing technical training to the purchasers of the foam.
Another example of a creative approach was proving that the cameraman prevented customers from getting out of the nightclub safely. We used his videotape and focused on one patron in the video. By timing her egress, it became clear how significant a backlog he created.
We knew early on that we had to show the many defendants and defense counsel that we had the commitment and wherewithal to prosecute our claims. Many defendants—including the insurance inspectors, the promoters, and the polyurethane foam manufacturers—filed Rule 12(b)(6) motions to dismiss our complaint, but only a few of these motions were granted. Detailed, thoughtful work in our prefiling investigation, our complaint, and our opposition to the Rule 12(b)(6) motions became even more important than usual.
Engaging the very best professionals in their respective fields was essential. We could never have accomplished what we did without the help of our scientific experts, special masters, neutral verification experts, and mediator.
We filed a motion to appoint Professor Francis McGovern of Duke Law School as a special master to develop a plan of distribution for any settlement funds eventually collected. He spent hundreds of hours working with us to formulate a distribution plan, and meeting and communicating with each of the 306 plaintiffs—all for no fee.
A special master was appointed for the minors who lost parents or whose parents were severely injured in the fire. We also sought and were granted court appointment of neutral verification experts. They spent weeks reviewing each claim filed to see whether and how each fit into the parameters of McGovern’s plan of distribution.
Once settlements were reached, we sought approval of
- each settlement itself
- the release we negotiated with defense counsel (including indemnification and the conditions precedent that had to occur before payment was made)
- the establishment of a 468B settlement trust
- the appointment of the 468B trustee and administrator.
Teamwork among plaintiff counsel was critical to our success. Our focus was on inclusiveness and sublimating ego for the greater good. No one lawyer or law firm could have accomplished this result.
Most important, we realized that this was all about our clients, the victims of this completely preventable tragedy. We clearly saw how our civil cases could give our clients—and, indeed, our state—an opportunity to heal and to obtain much-needed closure.
- Gray v. Derderian, No. 1:04-cv-00312-L-DLM (D.R.I. Dec. 11, 2009)
- 28 U.S.C. §1369 (2002).
- R.I. Gen. Laws §9-1-2 (2012).
- The Gray v. Derderian complaint and many of the orders, memos, and other documents from the case are on file with the authors.
- See also McElheny v. Trans Natl. Travel, Inc., 165 F. Supp. 2d 190 (D.R.I. 2001).