Killer Show: The Station Nightclub Fire (44 page)

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 particular 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.

The plaintiffs benefited in another wholly unexpected way from our candid exchange of information with Pactiv. Pactiv had done research in 1995 and 1996 to determine different companies’ market shares for laminated
PE
foam plank. Lovely pie-charts from that research explained that Sealed Air had 51 percent of the market in 1995, Sentinel had 26 percent, and Pactiv, only 8 percent. If one were to eliminate Pactiv as a possible producer of the Julian-installed foam, Sealed Air’s market share went up to 56 percent, and Sentinel’s to 29 percent. The argument could therefore be made that, to a mathematical probability, it was more likely that Sealed Air’s foam had graced the walls of The Station.

Sealed Air took a more traditional route in defending against the plaintiffs’ claims. It filed a motion for summary judgment, attaching company marketing brochures for its laminated
PE
foam plank from 1993 to 1995. In so doing, it would unwittingly walk into a buzz saw.

The mystery of where Howard Julian obtained his
PE
foam blocks was eventually solved by further interviews with, and a sworn affidavit from, ex-Station manager Tim Arnold. Arnold finally admitted that, as he watched Julian install the foam in 1996, Julian told him he had found the foam “in a dumpster.” According to the Arnold affidavit, Julian had no packaging material, boxes, or receipts for his claimed purchase of the foam.

Why would Howard Julian have an incentive to lie about the foam’s origin? Well, at the time, Jeffrey and Michael Derderian were facing hundreds of
felony criminal charges for, among other offenses, putting flammable foam on the club’s walls — foam that
they
obtained from a reputable supplier, American Foam Corporation. If the
Derderians
were in criminal peril for installing sound foam from a legitimate source, how would it look for Julian if it came out that he had endangered club patrons by dumpster-diving for
even cheaper
“sound insulation”?

The good news after Tim Arnold’s revelation was that we now had strong evidence of where Julian obtained his foam. The bad news was that, in order to advance a product liability theory against the foam’s original manufacturer, we would essentially be urging “dumpster product liability.” Considering that the law of product liability originally required “strict privity” (the relationship between buyer and seller) in order for an injured consumer to bring suit, dumpster liability sounded a stretch, at best.

We would have our work cut out for us. In order to prove a product liability case against a
PE
foam manufacturer, we’d have to show that (a) its reuse through recycling was foreseeable; (b)
PE
’
S
use as a sound insulator was also foreseeable; (c) printed fire hazard warnings on
PE
plank were feasible and would not have impaired its proper uses; and, (d) the presence of
PE
foam on the walls of The Station made a material difference to the intensity of the blaze.

Of course, a threshold issue before even these could be reached was, “Who most likely made the Julian foam?” If it were Sealed Air, the claim might have value; if Sentinel, it would have none.

At the time Sealed Air filed its motion for summary judgment, with attached marketing brochures, it could not have known that the chain of custody for Julian’s foam would include recycling via dumpster. So it probably saw no harm in voluntarily producing documents from 1993 to 1995 in which Sealed Air bragged that its foam was “designed for maximum re-use” and could be “reused, returned and recycled.” “Sealed Air Plank can be used over and over again,” trumpeted the brochures.

As to the use of Sealed Air
PE
foam for sound insulation, the same mid-’90s sales brochures listed “acoustical insulation” and “sound deadening” among its applications. Once again, we had Sealed Air to thank for helping us prove a critical issue in our case.

But what of the feasibility of printing flammability warnings on the board stock before it was shipped to fabricators? Was there any precedent in the plastics industry for printing warnings on a product about misuse after the end product was discarded? Well, one that every juror was familiar with was the warning appearing at intervals on the clear plastic film used for dry
cleaner bags: “
WARNING!
This bag is not a toy. Danger of suffocation. Do not use it to line cribs
.”

Thanks to Sealed Air, it looked like recycling and reuse of
PE
foam were foreseeable, as was its use for sound insulation. And there appeared to be precedent for warning of foreseeable misuses after the product was discarded. All that remained was for us to prove that the
PE
foam made a difference in the Station fire.

Oh, and one other little matter — proving that Sealed Air actually made the Julian foam.

The Western Fire Center in Kelso, Washington, contains equipment that would be the envy of every thirteen-year-old computer geek / pyromaniac — which is to say, also most adult males. If the whole law thing doesn’t pan out for me, I’d like to work at the Western Fire Center, burning stuff. Once, they were hired to test whether shattering high-intensity mercuryvapor lamps could ignite warehouse fires. For this, they installed huge lamps above pallets of combustibles — and shot out hundreds of the hot bulbs with a
BB
gun. They also tested an acetylene-powered gopher extermination system that had, unfortunately, launched a farmer who had the poor judgment to stand over the gas-filled main gopher-hole as he fired it up. My kind of science. Hell, I’d pay
them
to work there.