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October 5, 2007
Station plaintiffs: Defense can't block special master
PROVIDENCE -- Lawyers for The Station fire victims claim that no one they are suing has standing to object to the court’s appointment of a special master who would help divvy up settlement proceeds among those who lost loved ones or suffered injuries in the nightclub fire.
In newly filed papers, they also assert that if a federal judge declines to appoint a special master, the fire victims will have to bear additional costs to get money from parties who have offered to pay them out-of-court settlements, and that it will take longer for them to get paid.
A handful of defendants being sued by the fire victims have tentatively agreed to pay $13.5 million to settle the victims’ federal lawsuits. The settlements, if approved by Senior U.S. District Court Judge Ronald R. Lagueux, would be the first in what the victims’ lawyers hope will be many with a wide cast of parties -- about 90 all together -- that remain as defendants in the federal civil suits.
The victims’ lawyers want Lagueux to appoint Duke Law School Prof. Francis E. McGovern as special master in the case. McGovern has performed similar duties more than 50 times in complex tort cases including the DDT toxic exposure litigation, the Dalkon-Shield litigation and the silicone breast implant cases. He has also participated in developing a reparations system for people, businesses and government entities affected by the Iraq war.
If appointed by Lagueux, McGovern would decide how all of the settlement money would be divided among each of the plaintiffs who suffered injuries in The Station fire. He would interview the victims and their families and then devise a grid that would be used to apportion how much each of them would get. The court would still independently have to approve all settlement offers after determining that they were being made in good faith.
Lagueux has scheduled a hearing on McGovern’s appointment for Oct. 18.
Lawyers for the fire victims say that if the judge approves McGovern’s hiring, it would provide assurance to the victims and the public “that there will be a recognized, objective and transparent settlement distribution formula in place to ensure that all plaintiffs are treated as fairly and objectively as possible in the resolution of these complex and emotionally-charged claims.”
But lawyers representing two foam manufacturers who are being sued -- General Foam and Foamex -- are objecting to the court appointing a special master. They say if the victims want to hire their own consultant to help them divide settlements, they are free to do so but that the court should not be involved.
More than 300 fire victims and their survivors have filed lawsuits in U.S. District Court here seeking damages in connection with the Feb. 20, 2003, fire at the West Warwick nightclub.
-- Journal staff writer Tracy Breton
One hundred people died in the fast-moving blaze and more than 200 suffered injuries. The fire began when the tour manager for the rock band Great White set off fireworks inside the club without a permit. Sparks from the pyrotechnics ignited highly flammable polyurethane foam that the owners of the club, Michael and Jeffrey Derderian, installed on the walls and ceiling of the club as soundproofing. All three men were prosecuted on involuntary-manslaughter charges. Two were given prison terms, the third, a sentence of community service.
In court papers filed with Lagueux this week, the victims’ lawyers say that hiring McGovern independently -- without court oversight -- would be detrimental to their clients.
Since there are many minors suing for damages, as well as estates of people who died, Lagueux and a raft of probate judges will have to determine if the proposed settlements are in the best interest of the deceased and their surviving children. If McGovern isn’t appointed by Lagueux, they say, his efforts in developing a grid for settlement distributions “would have to be duplicated by a multitude of specially appointed guardians ad litem for all minor plaintiffs and many of the estates and potentially by the court itself.”
The victims’ lawyers assert that they have “built-in conflicts of interest” in allocating settlement funds and that they need to have an independent, court-approved master who would decide what each person should get. They say it would be unethical for them to decide what each of their clients should receive from the settlement money because they each represent more than one victim and their job is to ensure that each client gets the maximum amount possible. Having an independent, court-authorized third-party decide what each victim should receive, based on a grid, would be the fairest and most objective way of distributing the money, they argue.
They point out that of the approximately 90 defendants they are suing, only two -- General Foam and Foamex -- are objecting to McGovern’s appointment by the court. And they contend that none of the parties they are suing has a legal right to object.
The victims lawyers say that if Lagueux appoints the special master, it will not entangle him in any fee disputes, nor will it cost the defendants any money. Any fees charged by McGovern would be paid by the plaintiffs, they say.
The defendants who have offered tentative settlements thus far are:
* Luna Tech Inc., of Alabama -- and two of its European subsidiaries -- which the lawsuits contend manufactured the pyrotechnics used by Great White the night of The Station fire.
* High Tech Special Effects Inc., a Tennessee company that is alleged to have sold the fireworks used by Great White at club the night of the fire.
* Celotex Corp., which manufactured SoundStop board and then sold it for distribution to consumers. According to the lawsuits, the Derderians purchased SoundStop for their nightclub from Home Depot and then installed it in the ceiling of the drummer’s alcove and elsewhere inside The Station.
* Triton Realty and Raymond Villanova, owners of the building on Cowesett Avenue where The Station was located.
* Joseph LaFontaine, of Warwick, owner of New England Custom Alarms, the company that installed the fire alarm system at the club when it was owned by Howard Julian, before the Derderians bought it.
Posted by Mike McKinney
at 3:15 PM | Permalink
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