September 28, 2006

The Station Plea and the Responsibility for the Foam that Shouldn't Have Been There

Carroll Andrew Morse

It appears that much the Derderian brothers legal defense in a Station Fire trial would have focused on who was most responsible for the presence of flammable sound-proof foam in the building. The defense, according to Mark Arsenault et. al. in Sunday's Projo, was going to argue that the Derderians believed they had installed fireproof foam, but had been defrauded by a foam company that sent a different product than was ordered and actively concealed that fact. Furthermore, according to the defense, the Derderians were never alerted to the problem despite multiple-fire inspections...

"We hung the foam in the nightclub but there are so many extenuating circumstances that we would have brought out," [Kathleen Hagerty] said. The [Derderian brothers], she said, had ordered "sound foam," which in any place of public assembly must be fire-retardant.

"But instead of getting the sound foam they'd ordered," said Hagerty, "they got packing foam and were never told that they weren't getting the sound foam they had ordered."

Foam is sold with a material data warning safety sheet, Hagerty said, but that information was never given to the Derderians by the salesman from American Foam.

"And we would have presented testimony from employees of American Foam who would have told the jury that they were under orders from the owner not to supply that sheet unless the buyer specifically asked for it," Hagerty said. "But the manufacturer of the foam had sent a letter to the distributors encouraging them to give the safety sheet to the end-user."

Hagerty also said that the defense would have presented evidence that [West Warwick Fire Inspector Denis Larocque] had inspected The Station six times after the foam was installed but never cited the Derderians for having flammable foam in their club.

We have no idea how strong that defense would have been. On the one hand, Attorney General Patrick Lynch hasn't indicted anyone from the foam company, indicating he doesn't believe that the case against them is strong. On the other hand, the lenient sentence accepted by Judge Darigan could be an indication that he believed that shifting the blame to the foam-company (or to Larocque) would have been effective.

Whatever the answer, when there is such a discrepancy between the prosecution's and the defense's version of events, shouldn't the judge wait to see the case presented at trial before deciding on a sentence?

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the fact thatAG Lynch didn't indict anyone from the foam company should not be used as a standard to determine whether he had a strong case.

he didn't indict triton realty - the owners of the building - or any town officials, both of which have strong cases to made against them.

but you say town officials can't be prosecuted?...not so fast on that one.

Posted by: johnb at September 28, 2006 1:55 PM


"... the lenient sentence accepted by Judge Darigan could be an indication that he believed that shifting the blame to the foam-company (or to Larocque) would have been effective."

Good point, Andrew, that didn't strike me the first time.

As to your last point, yes, the Attorney General has had a little success throwing dust in the air. But as I understand, your suggestion is not feasible because the AG's office put a plea offer on the table *, the defense accepted and the AG cannot withdraw a plea once the defense accepts. So this case cannot go to trial, much as it should have for a lot of reasons.

* We know this happened because Mr. Ferland and others still have their job at the Attorney General's office.

Posted by: SusanD at September 28, 2006 2:23 PM

This is my (non-legal expert) thinking on this.

Iíve heard from various sources that for fire officials to be held criminally negligent, a high standard has to be met, something along the lines of proving malicious intent. Therefore, itís possible that the Derderiansí defense lawyers could have made the case that the fire officials were most responsible for what happened, while not making the case that they should be prosecuted under existing law.

However, the foam manufacturer canít hide behind the laws that shield public officials. If the foam manufacturer sold the wrong product, and the defense successfully argues that the foam manufacturer was most responsible for what happened, then it seems almost automatic that the foam manufacturer should be facing whatever foam-related charges the Derderians are facing, and maybe more.

So why didnít the AG indict the foam manufacturer? Is it becasue the reported defense is a reach for a longshot (but if this is the case, why did Darigan accept the lenient deal?), or is it because the AG didn't properly cover all of his bases, or is it something else? It may be hard to tell, without a trial.

Posted by: Andrew at September 28, 2006 2:50 PM

Andrew,

A high standard does indeed have to be met on the state level.

Federal law is another story...

Posted by: johnb at September 28, 2006 3:49 PM

Whenever everybody wants to get over the emotional aspects of this case and simply view it from a logical standpoint, it will be quite clear that the single most culpable party in this case is the fire inspector who didn't do the job he is paid to do. If the fire inspector, despite the training he recieved, didn't know enough to point out the problems with the foam, how in God's name is a small club owner supposed to know?
Funny how when contract time comes the firemen want to be treated like professionals. How about now?
The fact is simple - if the fire inspector did his damned job, this fire would not have happened! How can it possibly be that he is not on trial?

Posted by: Jim at September 28, 2006 7:24 PM

It is real convenient for Hagerty to be presenting her case in the press now. There will be no cross examination, and I assume the foam company won't bother with a statement since their culpability is merely anecdotal. It smacks of propaganda designed to rehabilitate the Derderian's image. Is this pro bono, or does this come as part and parcel of the defense lawyer as true believer contract? In my work I don't always receive an MSDS without asking, and never in memory on a non-liquid/aerosol/gas item. However - in lieu of flame testing - the Inspector absolutely had a responsibility to ask the proprietors to procure one for examination.

Posted by: rhodeymark at September 29, 2006 10:38 AM

I suspect the diversion of blame to the foam company is just that, a diversion.

While it's convenient for Darigan to dismiss this case because "nobody really intended the deaths", let's not forget that Michael Derderian's first move was to grab the night's receipts after the fire broke out. Not look for a fire extinguisher. Not help his customers escape the fire. Not call the fire department. No, he grabbed the cash. And this guy isn't going to jail.

People can debate whether or not the Derderians knew about the foam. People can debate whether anyone knew that the pyro could be so dangerous.

But it is undebatable that Michael Derderian's first priority was not human life. It was the money. And for 100 lives, Michael Derderian got no jail time.

I wonder whether Derderian deposited the money from that night...?

Posted by: Anthony at September 29, 2006 1:42 PM

On a related subject, I can't tell you how disappointed I am with Bill Harsch on this issue. From what I can tell, he has exhibited no leadership.

Why? Because he doesn't want to politicize this tragedy?

Hey, I got news for you, it's the job of the AG to deal with highly-politicized legal cases. You may not like it, but it comes with the turf.

When the incumbent AG screws up this badly--and Lynch has shown himself to be completely incompetent--you need to be prepared to take him to task.

If Harsch can't handle that reality or he think's it's uncooth to criticize the AG's office handling of the case beyond issuing a statement, he shouldn't be running for office.

I could just see a Giuliani or even an Elliot Spitzer saying, "Oh gee, it's just too sensitive of a topic."

Posted by: Anthony at September 29, 2006 1:54 PM