View this article online: https://www.insurancejournal.com/news/east/2005/11/09/61729.htm
A salesman who sold the flammable foam that spread a deadly fire through a Rhode Island nightclub in 2003 said it was his company’s policy to not warn customers of the potential dangers of the product, according to newly filed court documents.
The allegations could support the club owners’ claims that they had no idea the foam they bought was flammable, and thought it was appropriate to use as soundproofing for the club.
Brothers Jeffrey and Michael Derderian are charged with 200 counts each of involuntary manslaughter that accuse them of negligence and violating the fire code.
One hundred people were killed in the February 2003 blaze. Eight people who died either lived or worked in Connecticut.
Barry Warner, who used to work for American Foam Corp., made the claims in an eight-page anonymous letter faxed to prosecutors in May 2003. The note was signed by a “knowledgeable source,” but Warner admitted to investigators last week that he sent the fax.
“This is a company that did little to educate their employees about the limits of polyurethane foam. In fact, they did the opposite,” reads the letter, which was turned over last week to defense lawyers preparing for the nightclub owners’ criminal trial sometime next year. “This is a company that did not want to lose a sale by telling the truth.”
A man at Johnston-based American Foam deferred comment to the company’s lawyer, who did not immediately return a call for comment. But the company’s general manager told WJAR-TV that Warner’s claims were not true.
Authorities said the fire at The Station spread quickly after sparks from a rock band’s pyrotechnics display ignited the foam, which the Derderians used as soundproofing on the building’s walls and ceiling.
The brothers have said they were unaware that the foam was flammable and in violation of the state fire code.
“(The note) alleges that American Foam had a policy in place to not inform potential customers of the flammability of the foam,” said Kathleen Hagerty, a lawyer for the Derderians.
The letter accuses the company of knowingly concealing the dangerous properties of the foam, saying salesmen sold it “out the back door” without warning customers that the material was “not flame retardant.”
“If they warned the potential customer they may lose the sale,” it reads. “If they put a warning tag on the foam (it may scare the customer away).”
Lauren Wilkins, a lawyer for Warner, declined to comment. Warner did not immediately return phone messages.
The Derderians have pleaded innocent to the 200 counts, as has Daniel Biechele, former tour manager for Great White. No one else is charged.
Andrew Horwitz, a law professor at Roger Williams University, said anything the Derderians can do to “provide their own story of innocent people being misled and bamboozled by other businesses, the better off they’ll be. That much is clear.”
Hagerty said the letter, which she called exculpatory, should have been turned over to the defense earlier.
But Michael Healey, a spokesman for Attorney General Patrick Lynch, said prosecutors handed over a copy of the fax and an audio recording after interviewing Warner on Thursday.
“As soon as we confirmed who had written this statement, we provided it to the defense,” Healey said.
The Derderians and Biechele argued in court last month for the dismissal of 100 of the 200 manslaughter counts. Those charges accuse the defendants of committing misdemeanor offenses that led to the deaths. Prosecutors allege that the Derderians violated the fire code by installing their foam and that Biechele set off pyrotechnics without a permit.
Warner, who lived near the nightclub, provided the Derderians with foam for soundproofing purposes, but never told them whether it was flammable, according to grand jury testimony cited in earlier court papers.
“We now have information that, according to Barry Warner, his policy and the policy of the company was to not even warn the customers or educate them in any way about the dangers of the foam,” said Jeff Pine, a lawyer for Jeffrey Derderian.
On Friday, the Derderians asked the judge for more time to file supplements to their motion to dismiss, saying the newly disclosed information may form the basis for additional arguments.
American Foam has also been sued in federal court by lawyers representing fire survivors and relatives of the victims.