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September 28, 2007

Judge: Cunha clients can't pursue Station foam claims

PROVIDENCE – A federal judge has ruled that Station fire victims represented by lawyer Brian R. Cunha may not pursue their claims against a publicly-traded company that may have manufactured the highly flammable foam that lined the walls of The Station nightclub because Cunha never properly notified the company that he was suing them.

This means that if a jury were to find foam manufacturer Leggett & Platt liable for money damages at a trial -- or if the company were to agree to an out-of-court settlement -- the 19 fire victims represented by Cunha would not share in any of the money paid by Leggett & Platt.

Cunha, in a hearing on Sept. 19, told Senior U.S. District Court Judge Ronald R. Lagueux that his failure to serve Leggett & Platt had been an oversight. He blamed one of his paralegals for the error. He argued that it would be unfair to punish his clients by throwing out their claims against the foam manufacturer. And he contended that the lawyer here representing Leggett & Platt should have called him on the phone to give him a head’s up that he hadn’t been served.

But Lagueux was not convinced. Cunha had had years since filing his lawsuits to serve notice on Leggett & Platt and the lawyer for Leggett & Platt “continually gave notice in various pleadings that they had not been served and that they were not answering” the Cunha lawsuits, the judge said.

“It’s unfortunate that this has happened, but trying to shift the blame to the defendants doesn’t carry the day in this case. I’m satisfied that the plaintiffs have not shown good cause for this long delay in either making service or presenting the waiver of service to the defendants,” said Lagueux.

The burden, said the judge, was on Cunha “to demonstrate to me there’s good cause for allowing them to make tardy service at this time."

Good cause, said Lagueux, “requires a demonstration of good faith on the part of the party seeking” an extension of time “and some reasonable basis for noncompliance” with court rules.

“And it’s been held that an attorney’s inadvertence, neglect or mistake is not good cause. And here, whether it’s a paralegal, or someone else in a plaintiff’s office has not satisfactorily explained what happened,” said Lagueux.

“Obviously, there was an oversight” but Cunha, said Lagueux, had given no detailed explanation about what had happened, except “a last-minute discussion with a paralegal and the representation made to the court that the paralegal somehow didn’t catch it.”

Cunha, in a telephone interview today, said he would appeal Lagueux's decision to the 1st U.S. Circuit Court of Appeals in Boston by day's end and predicted "I'm gonna win on appeal."

He said, "I was very surprised by the judge's decision," and that "with all due respect it was factually incorrect and I feel strongly, upon appeal, we'll be fine."

Cunha said that Leggett & Platt's lawyer filed an answer to all of the fire victims' claims against it and included him in the list of people served with answers. He said the foam company's lawyer never raised the issue of "insufficiency of process" until just recently.

Lagueux’s ruling does not affect the Leggett & Platt claims of the fire victims who are represented by other lawyers – just Cunha’s clients.

Leggett & Platt, a Missouri corporation, is one of the big-pocket defendants being sued by the families who lost loved ones and those who suffered injuries in The Station nightclub fire on Feb. 20, 2003. The company’s stock is traded on the New York Stock Exchange. The fire victims allege in their lawsuits that Leggett & Platt manufactured foam that the owners of The Station, Michael and Jeffrey Derderian, bought as sound-proofing for their club.

-- Journal staff writer Tracy Breton

Posted by Andrea Panciera  at 12:26 PM | Permalink

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